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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A    TREATISE 


UPON    THE 


LAW    OF    TELEGRAPHS; 


WITH  AN  APPENDIX, 

CONTAINING    THE    GENERAL    STATUTORY   PROVISIONS    OF    ENG- 
LAND, CANADA,  THE  UNITED  STATES,  AND  THE  STATES 
OF   THE   UNION,  UPON   THE   SUBJECT    OF 
TELEGRAPHS.' 


WILLIAM  L.  SCOTT  AND   MILTON  P.  JAENAGIN, 
"» 

MEMPHIS,  TENNESSEE. 


BOSTON: 
LITTLE,  BKOWN,  AND    COMPANY. 

1868. 


Entered  according  to  Act  of  Congress,  in  the  year  1868,  by 

W.   L.    SCOTT    AND    MILTON    P.   JARNAGIN, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  District 
of  West  Tennessee. 


CAMBRIDGE: 
PRESS  OF  JOHN  WILSON  AND  SON. 


PREFACE. 


THE  rapid  extension  of  the  Telegraph,  and  its  grow- 
ing importance  in  commercial  transactions  and  in 
private  correspondence,  induced  the  belief  that  a 
treatise  upon  the  Law  of  Telegraphs  would  be  ac- 
ceptable to  the  Profession. 

Numerous  cases  in  England  and  America  have 
already  come  before  the  Courts  for  adjudication,  in- 
volving rights  and  liabilities,  growing  out  of  the  use 
of  the  Telegraph ;  and  the  cases  steadily  multiply,  as 
this  agency  becomes  more  extended.  The  wonder- 
ful perfection  of  the  instruments  and  appliances  now 
used,  as  also  the  improvements  constantly  being  made, 
plainly  indicate  that  the  Telegraph  has  a  capacity  for 
serving  the  public,  not  dreamed  of  by  its  first  in- 
ventors. Its  adoption  into  the  postal  systems  of  the 
world  is  only  a  question  of  time. 

It  will  be  seen  that  there  is  much  conflict  of  judi- 
cial opinion  upon  important  questions  connected  with 
this  subject,  in  the  cases  already  reported.  They  are 
scattered  through  so  many  series  of  reports,  that  they 


IV  PREFACE. 

are  not  accessible  by  those  who  have  not  very  large 
libraries.  A  mere  compilation  of  decisions  would  be 
useful ;  but  that  would  still  impose  upon  the  reader 
the  necessity  of  sifting  and  comparing  the  whole  mass, 
in  order  to  find  the  weight  of  authority  in  a  given  case. 
Manifestly  a  treatise  only  can  meet  the  wants  of  the 
Profession;  and  we  have  written  one.  Believing  a  sat- 
isfactory solution  of  these  questions  could,  in  most  in- 
stances, be  found  in  the  analogies  of  legal  principles 
already  established,  we  have  traced  the  resemblance 
wherever  deemed  apposite.  Our  expression  of  dis- 
sent from  the  conclusions  of  several  Courts  may  be 
proof  of  our  temerity  ;  but  we  imply  no  disrespect  for 
the  learned  Judges  by  whom  the  cases  were  decided. 

Whether  the  same  extraordinary  responsibility  rests 
upon  Telegraph  Companies  in  relation  to  the  transmis- 
sion of  messages,  as  is  applied  to  common  carriers  in 
the  carriage  of  goods,  is  a  very  interesting,  and,  per- 
haps, the  most  important,  branch  of  Telegraph  Law, 
and  about  which  there  is  the  greatest  diversity  of 
opinion. 

We  have  adopted  the  following  order  of  arrange- 
ment :  Part  I.  relates  to  things  common  to  Telegraph 
Companies  and  other  corporations ;  and  Part  II.  to 
things  peculiar  to  Telegraph  Companies. 

It  is  believed  that  we  have  referred  to  all  the  cases 
reported  upon  this  subject  which  possess  any  interest, 
and  the  important  points  they  contain  have  been 
exhibited,  either  in  the  text  or  in  the  notes. 


PREFACE.  V 

We  offer  this  work  to  the  Profession  with  diffidence ; 
and  that  diffidence  is  increased  by  the  fact  that  we 
have  had  no  precursor  in  this  field  of  investigation. 
It  may  fail  to  meet  the  wants  of  the  Profession ;  still 
we  offer  it  in  the  hope  that  its  defects  may  incite,  and 
its  merits  assist,  those  who  may  be  willing  to  un- 
dergo the  labor  of  a  more  satisfactory  and  thorough 
presentation  of  this  important  subject. 

MEMPHIS,  Tennessee,  September,  1868. 


CONTENTS. 


PAGE 
TABLE  OF  CASES  CITED  xi 


PART    I. 

OF  THINGS  COMMON  TO  TELEGRAPH  COMPANIES  AND  OTHER 
CORPORATIONS. 

CHAPTER  I. 

SECTION 

Telegraph  Companies  in  their  Relation  to  the  State   .  1-13 

CHAPTER  II. 
Organization 14—22 

CHAPTER  III. 

Right  of  Way  by  Purchase  and  Condemnation      .     .     .         23-35 

CHAPTER  IV. 
Powers  under  the  Charter • 36-48 

CHAPTER   V. 
Construction  of  Telegraph  Lines 49-60 

CHAPTER  VL 

Liability  ex  delicto  of  Telegraph  Companies ;  and  Inju- 
ries to  Telegraphs  made  Criminal  by  Statute     .     .     .         61-75 

CHAPTER  VH. 
Remedies   .  ....         76-94 


Vlll  CONTENTS. 

PART    II. 

OF  THINGS  PECULIAR  TO  TELEGRAPH  COMPANIES. 
CHAPTER  T. 

SECTION 

The  Nature  of  the  Engagement  of  Telegraph  Compa- 
nies in  Respect  to  Messages 95-102 

CHAPTER  II. 

Rights  and  Duties  of  Telegraph  Companies      ....  103-138  a 
Rights :  — 

First,  To  make  reasonable  Rules  and  Regulations  104-1 18  b 
Second,  To  decline  sending  certain  Messages       .  119 

Third,  To  withhold  certain  Messages 120 

Fourth,  None  to  require  Messages  sent,  etc.  ...  121 

Duties :  — 

To  the  Public  and  to  Individuals 123-138  a 

CHAPTER  III. 

Contracts  in  Relation  to  Messages 139-197 

Power  to  limit  Liability  by  Contract 141-147 

How  and  to  what  extent  Notices  affect  Contracts     .  148-161 

How  Implied  Contracts  are  affected  by  them       .     .  1(12 
Construction  of  Contracts,  and  Rights  and  Duties 

under  them,  express  and  implied 163-197 

CHAPTER  IV. 

Extent  of  Responsibility  in  Relation  to  Messages       .     .  198-269 
Authorities  holding  Telegraph  Companies  to  be  Car- 
riers, or  in  the  Nature  of  Carriers 199-206 

Authorities  holding  them  to  a  more  limited  Respon- 
sibility     ...%..     207-229 

Observations  upon  the  Weight  of  Authority  .     .     .  L'.'JO 

The  Authors'  Views  as  to  their  Responsibility    .     .  231 -:?•">(> 

Modes  of  Restricting 257-269 

CHAPTER   V. 

Responsibility  for  Messages  beyond  the  Company's  Line  270-294  a 


CONTENTS.  IX 

CHAPTER   VI. 

SECTION 

The  Telegraph  as  a  Medium  of  Contract 295-339  a 

CHAPTER   VH. 
Evidence 340-386 

CHAPTER  Vin. 
Measure  of  Damages 387-418 

CHAPTER  IX. 

Penalties  and  Indictment  by  Statute  in  Relation  to  Mes- 
sages           419—446 


PAGE 
APPENDIX 420-507 

INDEX  511-535 


TABLE  OF  CASES  CITED. 


A. 

Section 

Adims  v.  Lindsell  .  310,  320 

Alder  v.  Keighley  390 

Aldrich  v.  Press  Printing  Co.     138  a 

Allen  v.  Farnsworth  26 

•       v.  Montgomery  R.E.  Co.  37, 41 

v.  Sewall  87,  167 

American  Ex.  Co.  v.  Calvin 

Fletcher  193 

Ammant  v.  New  Alexandria  & 

Pittsburg  Turnpike  41 

Amory  v.  Hamilton  399 

Angle  &  Co.  v.  Miss.  &  Mo. 

R.R.  Co.  272,  278,  283 

Armington  v.  Barnet  5 

Arthur  v.  Com.  &  R.R.  Bank 

of  Vicksburg  39 

Asahel  Ernigh  v.  Selah  Cham- 
berlain 40 
Atty.  Gen.  v.  United  Kingdom 

Elec.  Teleg.  Co.  2,  81 

Atty.  Gen.  at  the  relation  of 
Baron  Rothschild  v.  The 
United  Kingdom  Electric 
Teleg.  Co.  81 

Aurora  v.  West  8 

Austin  v.  The  Manchester  S. 

&  L.  Railway  146 


B. 

Backus  v.  Lebanon  27 

Bain  r.  Morse  71 

Baldwin  v.  Collins  146,  148,  167 

Baltimore  &  O.   R.R.  Co.  v. 

Rathbone  266 

Bangor  &  Piscataquis  R.R.  Co. 

v.  Harris  11 

Bank  of  Augusta  v.  Earle  36 

Bank  U.S.  v.  Dandridee  6,  36- 

v.  Planters  Bank  of 

Ga.  4 


Section 

Bank  of  Cape  Fear  v.  Edwards       11 
Barber  v.  Lane  138  a 

Barker  v.  Midland  Railway  106 

Batson  v.  Donovan  146 

Beardslee  v.  Richardson  229 

Beckwith  v.  Sydebotham  386 

Bell  v.  Cunningham  401 

Beman  v.  Rufford  40 

Benford  v.  Banner  381 

Bennett  v.  Filyaw  272,  275 

Bigelow  v.  Cong.   Society  of 

Middleton  •  41 

Birney  v.  N.Y.  &  Wash.  Print- 
ing Teleg.  Co.   69,  99,  112,   114, 
117, 118  a,  147,  155,  207,  237,  372, 
383 
Bissell  v.  N.Y.  Cent.   R.R. 

Co.  140, 149 

Blakemore  v.  Glamorganshire 

Canal  Co.  42,  59 

Blake  v.  Great  Western  R.R. 

Co.  271 

Blanchard  v.  Isaacs  159 

Blin  v.  Mayo  187 

Bloodgood  v.  M.  &  H.  R.R.  Co.     138 
Bodenham  v.  Bennett  146 

Bonaparte  v.    Cam.   &  Amb. 

R.R.  80 

Boston  &  Lowell  R.R.  Corp.  v. 
Salem  &  Lowell  R.R.  Co.  5,  9,  27, 

34 

Boston  Water  Power  Co.  v.  Bos- 
ton &  Worcester  R.R.  Co.  9,  26,  27 
Boulton  &  Watt  v.  Bull  71 

Bowen  &  McNamee  v.  Lake 

Erie  Teleg.  Co.  120,  166,  203,  409 
Bradford  v.  S.C.  R.R.  Co.  272,  293 
Bradley  v.  N.Y.  &  N.H.  R.R. 

Co.  26 

Breese   &  Mumford  v.   U.S. 

Teleg.  Co.  104, 114, 118  b,  143,  149, 
207,  214,  245 

Bridge  v.  Mason  399 

Bridges  v.  Stickney  389 

Broadwell  v.  Butler  188 

Brown  v.  Arrott  399 


Xll 


TABLE    OF    CASES    CITED. 


Section 

Brings  v.  Boston  &  Lowell  R.R. 

Co.  272 

Brown  v.  Eastern  R.R.  Co.  148 

Bryant  v.  Am.  Teleg.  Co.  180, 263, 399 
Bryant  v.  Biddeford  61 

Bunn's  Case  20,  21 

Byron  v.  N.Y.  State  Teleg. 

Co.  66 

C. 

California  State  Teleg.  Co.  v. 

Alta  Teleg.  Co.  5,  8,  36,  37 

Calvit  v.  McFadden  389 

Camden  £  Amboy  R.R.  Co.  v. 

Baladauf  146 

Camp  v.  The  Western  Union 

Teleg.  Co.     104,  113,  115, 117,  230 
Canal  Co.  v.  Blakemore  42 

Candee  v.  Penn.  R.R.  Co.  272 

Carpenter  v.  County  Com.  of 

Bristol  78 

Carr  v.  Ga.  R.R.  &  Banking  Co.  30 
Carter  v.  1'eck  272 

Central  Bridge  Corporation  v. 

The  City  of  Lowell  27 

C.  P.  &  A.  R.R.  Co.  v.  City  Erie  8 
C.W.  &  Z.  R.R.  Co.  v.  Corn's 

Clinton  Co.  19 

Chapman  v.  Morton  412 

Chard  v.  Stone  8 

Charles  River  Bridge  v.  War- 
ren Bridge  Co.  7,  8,  37 
Chesapeake  &  O.  Canal  Co.  v. 

Baltimore  &  O.  R.R.  Co. 
Chesley  v.  Pierce  87 

Chestnut  Hill  Turnpike  Co.  v. 

Rutter  138 

Chippendale  v.  Lan.  &  Yorkshire 
v    R.R.  Co.  146 

Cin.,  Ham.,  &  Dayton  R.R.  Co. 

v.  Spratt  272 

City  of  Aurora  v.  West  8 

Clark  v.  Monongahela  Xav.  Co.  18 
Clark  v.  Boston,  Concord,  &  M. 

R.R.  Co.  91 

Clark  v.  Faxton  146 

Clarke  v.  L.  &  N.  Union  Canal  78 
Coats  v.  Clarence  79 

Coggs  v.  Bernard  213 

Cohen  v.  Wright  8 

Coleman  v.  Eastern  Counties 

R.R.  Co.  21 

Collins  v.  The  Bristol  &  Exeter 

Railway  Co.  271,  282 

Commonwealth  v.  Power  106 

v.  Worcester         104 
<•.  Kdward  P. 

Jeffries,         380 


Section 

Commonwealth  v.  Easton  Bank  12 
v.  Fitchburg  R. 

R.  Co.  57 

Convoy's  Wheat  301 

Cookney's  Case  ~\ 

Copper  Mines  Co.  v.  Fox  48 
Corey  v.  Buffalo,  Corning,  &  N. 

Y.  R.R.  Co.  :M 

Cornwal  v.  Wilson  412 

Cory  v.  Norwich  &  Yar.  R.  80 

Cother  v.  Midland  Railway  58 

Couch  v.  Steel  431 
Covington  Plank  Road  Co.  v. 

Moore  17 
Coxon  v.  Great  Western  R.R. 

Co.  271 
Crawfordsville  &  Wabash  R.R. 

Co.  v.  Wright  70 

Croft  v.  Allison  69 
Crouch  v.  London  &  N.W.  R.R. 

Co.                                128,  271.  293 

Crouch  r.  Great  N.  Railway  Co.  303 
Cruger  v.  Hudson  River  R.R. 

Co.  94 

Curtis  v.  Harlow  87 


D. 

Danes  v.  Peck  179 

Dartmouth   College  v.   Wood- 
ward 

Davidson  v.  Graham  383 

Davis  v.  London  &  Blackwall 

R.R.  Co.  70 

Day  v.  Owen  104 

Dayton  &  Mich.  R.R.   Co.  v. 

Spratt  272 

Dean  v.  Sullivan  Railway  24 

Dearborn  v.  Boston,  Con.,  & 

Montreal  R.R.  Co.  70,  92 

Deere  v.  Guest  81 

Demming  v.  Bull  87 

Do  Kutte  v.  N.Y.,  Alb.,  &  Buff. 

Teleg.  Co.  101,  102,  11<>,  120,  123, 

143,  147,  158,  170,  177,  21: 

411,  414 
Detroit  Daily  Post  Co.  v.  Mr- 

Arthur  1880 

Dickey  v.  Maine  Teleg.  Co.  50,  54,  03 
Dickey  &  Wife  v.  Maine  Teleg. 

Co. 

Dorr  y.N.J.  Steam  Xav.  Co.  140, 149 
Draper  v,  Worcester  &  Norwich 

R.R.  Co.  370,  372 

Dry  burg  v.  N.Y.  &  W.  Printing 

Teleg.  Co.  .  69,  lu7,  1'Jn 

Dunning  v.  Smith  &  Roben 

339,  358 


TABLE    OF    CASES    CITED. 


Xlll 


Section 
Durkee  v.  Vermont  Cent.  R.R. 

Co.  97,  107,  183,  341,  360 

Dutton  v.  Solomonson  179 


E. 

Elec.  Teleg.  Co.  of  Ireland  v. 

Bunn  21 

Elec.  Teleg.  Co.  v.  Overseers, 

etc.,  of  Salford  11,  23 

Eliason  v.  Henshaw  320 

Elkins  v.  Boston  &  Maine  R.R. 

Co.  159 

Ellis  v.  The  American  Teleg. 

Co.       101,  104,  113,  114,  116,  149, 

197,  209,  224,  243,  416 

Elmore  v.  Naugatuck  R.R.  Co.     272, 

273,  293 

Enders  v.  Board  Public  Works  37 
Everett  v.  Saltus  179 

Eyre  v.  Higbee  179 


F. 

Farmers'  and  Mechanics'  Bank 

v.  Champlain  Transportation 

Co.  184,  272,  293 

Fenwick  v.  Bell  386 

Field  v.  Field  21 

Fish  v.  Chapman  144 

v.  Ross  260 

Fisk  v.  Newton  194 

Fletcher  v.  Peck  5 

v.  Tayleur  390,  397 

F.  0.  J.  Smith  v.  J.  W.  Clark  71,  386 

Fox  v.  Harding  389,  401 

Freeman  v.  Birch  179 

Furniss  v.  Hudson  River  R.R. 

Co.  92 

G. 

Garnett  v.  Willan  205 

Gee  v.  L.  &  Y.  Railway         390,  401 

v.  Pritchard  97 

Gibson  v.  Culver  184 

Gifford  v.  N.J.  R.R.  Co.  8 

Gildersleeve  v.  U.S.  Teleg.  Co.     118, 

155,  229,  397 

Gillespie  v.  Edmonston  310 

Cleaves  v.  Brick  Church  Turn- 
pike Co.  6,  17 
Gordon  v.  Preston  37 
Gordon's  Executors  v.  Mayor  of 

Baltimore  11 

Gould  v.  Hudson  River  R.R.  Co.    34 
Graham  &  Co.  v.  Davis  146 


Section 

Great  Western  Railway  v.  Reg.      78 
Green  v.  Seymour  6 

Griffin  v.  Colver       390,  392, 394,  397 
v.  House  42 

Griffith  v.  Ingledew  179 


H. 

Hadley  v.  Baxendale     390,394,  397, 

401 

Hall  v.  Sullivan  R.R   Co.  39 

v.  Power  106 

Hamilton  &  Deansville   Plank 

R.  Co.  v.  Rice  17 

Haralin  v.  Great  Northern  R.R. 

Co.  393 

Hanson  v.  Webb  8 

Hartford  &  N.H.  R.R.  Co.  v. 

Croswell  18 

Harvey  v.  Turner  399 

Hay  v.  Cohoes  Co.  138 

Head  &  Armory  v.  The  Prov- 
idence Ins.  Co.  36 
Hearn  v.  London  &  S.W.  Rail- 
way                                              167 
Hegeman  v.  Western  R.R.  Corp.  124, 

127 
Henderson  v.  Australian  Royal 

Mail  Nav.  Co.  48 

Henisler  v.  Freedman  137,  375 

Hentz  v.  Long  Island  R.R.  Co.        57 
Hightower  v.  Thornton  80 

Hinton  v.  Dibbin  146 

Hoare's  Case,  in  re  Elec.  Teleg. 

Co.  of  Ireland  20 

Hood  w.  N.Y.  &  N.H.  R.R.  Co.     273, 

293 
Hopkins  v.  Atlantic  &  St.  Louis 

R.R.  Co.  138  a 

v.  Gallatin  Turnpike  Co.  37 
Hornblower  v.  Boulton  71 

Howe  v.  Freeman  37 

Hudson  R.R.  Co.  v.  Cutwater         32 
Hueston  *>.  Eaton  &  Hamilton 

R.R.  Co.  92 

Hyde   v.   The  Great  Western 
Railway  84 


T. 


Illinois   Central  R.R.    Co.   v. 

Copeland  272 

Illinois  Central  R.R.  Co.  v. 

County  of  McLean  11 

Illinois  Central  R.R.  Co.  v. 

Downey  69 

Illinois  Central  R.R.  Co.  v. 

Rucker  78 


XIV 


TABLE    OF   CASES    CITED. 


Section 
Illinois  &  Miss.  Teleg.  Co.  v. 

Kennedy  77' 

Indian  Canon  Road  Co.  v.  Rob- 
inson 8 
Ingalls  v.  Bills                                 124 
Inge  v.  Birmingham  W.  &  S. 

V.  Railway  85 

Inhabitants   of  Springfield   v. 

Conn.  River  R.R.  Co.  9,  58 

In  re  Waddell  379 

Irvine    &  Others,  Trustees  of 

the  Alleghany  &  Erie  Teleg. 

Co.  v.  Forbes  17,  21 

Izett  v.  Mountain  143,  205 


J. 


Jackson  r.  Brown  37 
James  Johnson  v.  Churchwell  79 
Jenks  v.  Coleman  104 
Jenneson  v.  Cam.  &  Arab.  Rail- 
way 293 
Jerome  v.  Ross  80 
Johnson  v.  Midland  Railway  128, 

140 

Johnson  v.  "Whitefield  51 

Judson  v.  Western  R.R.  149 
Justices  of  Clark  v.  P.  W.  & 

River  Turnpike  Co.  78 

K. 

Keegan  v.  The  Western  R.R. 

Co.  66,  67 

Kemp  v.  Pry  or  412 

Kennard  v.  Burton  385 

Kennebec  &  Portland  R.R.  Co. 

v.  Palmer  17 

Kimble  v.  White  Water  Valley 

Canal  30 

Kinghorn  v.  Montreal  Teleg. 

Co.  335,  355,  372,  393 

Kyle  v.  The  Lawrence  R.R.  Co.  272 


Laing  v.  Colder  64,  146 

Lamb  r.  Lane  91 

Landsberger  v.  The  Magnetic 

Teleg.  Co.  392,  394,  897  6,  408 
Lane  v.  Cotton  207 

Lawrence  >-.  Wardwell  401 

Lee  &  Others  v.  Marsh,  Receiver  1  Mi 
>M  >-.  Holt  146, 

Leland  v.  Stone  390 

Leonard  ^  Burton  v.  The  N.Y., 

Alb.,  &  Buf.  Teleg.  Co.  102 


Section 

Le  Roy  v.  Tatham  71 

Lewis  ?\  The   Great   Western 

Railway  Co.  149 

Little  Miami  R.R.  Co.  v.  Nay- 

lor  f  38,42 

Livingston  v.  Lynch  21 

Locke  v.  Middlesex  Turn.  Co.        18 
London  &  Brighton  Railway  v. 

Blake  13 

London  &  Brighton  R.R.  Co.  v. 

Wilson  18 

Louisville  &  Nashville  Branch 
Turnpike  Co.  r.  Nashville  & 
Ky.  Turnpike  Co.  42,  59 

Louisville  &  Nashville  R.R.  Co. 
r.  The  County  Court  of  Dav- 
idson 19,  78 
Louisville  &  Portland  Canal  Co. 

v.  Commonwealth  11 

Lowell  v.  Boston  &  Lowell  R.R. 

Corp.  69 

Lowell  Wire  Fence  Co.  v.  Sar- 
gent &  Another  293 


M. 

Mactier  v.  Frith    310,  314,  319,  321, 

327 

Mann  r.  Currie  80 

Marr  v.  Bank  West.  Tenn.  80 

Mason  v.  Kennebec  &  Portland 

R.R.  Co.  70 

Matteson  v.  Noyes  353 

Maxwell's  Case  21 

Mayor,   etc.,  of  Alleghany  v. 

Ohio  &  Pa.  R.R.  Co.  34 

Mayor,  etc.,  Norwich  ».  Nor- 
folk R.R.  Co.  40 
McAndrew  v.  The  Elec.  Teleir. 
Co.     104,  117,  118  6, 143, 140,  149, 

•jo.-,,  -j-j'.i.  -JK; 

McCallie  v.  Mayor  &  Aid.   of 

Chattanooga  12 

McCulloch  v.  Eagle  Ins. 

Co.  310,  320,  321 

McDowell ».  Oyer  390 

McManus  v.  Crickett  O'J 

McMillan  v.  M.  S.  &  N.J.  R.R. 

Co.  149,  161 

Mechanics'  Bank  v.  N.Y.  &  N. 

11.  i;.K.  Co.  69 

Merrill  v.  Ithaca  &  Oswego  R. 

R.  Co.  372 

Michigan  Cent.  R.R.  Co.  v. 

Ward  1  1 1 

Michigan  v.  Hale  144 

Middlesex  Turnpike  Co.  v. 

Locke  18 


TABLE    OF    CASES    CITED. 


XV 


Section 

Midland  Railway  v.  Bromley  374 
Miller  v.  N.Y.  &  Erie  R.R.  Co.  10 
Mitchell  v.  Franklin  &  Col. 

Turnpike  Co.  30 

Morehead  v.  Little  Miami  R.R. 

Co.    .  38,  42,  59 

Morison  v.  Moat  137,  378 

Morrill  v.  Noyes  37 

Morris   &  Essex  R.R.  Co.  v. 

Ayres  104 

Morris  v.  Summerl  399 

Morse  v.  O'Reilly  71 

Moses  v.  Boston  &  Maine  R.R. 

Co.  148 

Moss  v.  Oakley  87 

Muschamp  v.  The  Lan.  &  Pres- 
ton Railway  271,  279,  282,  285,  293 
Mytton  v.  Midland  Railway  271 


N. 

Nashville  &  Chattanooga  R.R. 

Co.  v.  Cowardin  26 

Nashville  &  Chattanooga  R.R. 

Co.  v.  Messino  65,  67,  113,  127 
Natoma  Water  &  Mining  Co.  v. 

Clarkin  8 

Naugatuck  R.R.  Co.  v.  Water- 
bury  Button  Co.  273 
Nettles  v.  S.  Car.  R.R.  Co.  188 
New  Albany  &  Salem  R.R,  Co. 

v.  Connelly  92 

Newcastle  &  Richmond  Railway 

v.  P.  &  I.  Railway  9,  57 

N.J.  Steam  Navigation  Co.  v. 

Merchants'  Bank  128,  140, 146, 
229,  260 

N.J.  R.R.  Co.  v.  Kennard  124 

New  Orleans  &  G.  N.  R.R.  Co. 

v.  Hurst,  J.  138  a 

N.Y.  &  Sharon  Canal  Co.  v.  Ful- 
ton Bank  44 
N.Y.  &  Wash.  Print.  Teleg.  Co. 

v.  Dryburg  102, 107,  120, 165,  167, 
179,197,210,333,367,411 
Niagara  Falls  &  Lake  Ontario 

Railway  v.  Hotclikiss  28 

Nicholls  v.  Webb  371 

Norris  v.  Farmers'  &  Teamsters' 

Co.  8 

Northern  R.R.  Co.  v.  Fitchburg 

R.R.  Co.  293 

Nova  Scotia  Teleg.  Co.  v.  Am. 

Teleg.  Co.  37 

Noyes  v.  Rut.  &  Bur.  R.R. 

Co.  69,  293 

Nutting  v.  Conn.  River  R.R. 

Co.  272,  293 


O. 

Section 
Ohio  &  Miss.  R.R.  Co.  v.  Mc- 

Pherson  20 

Ohio  &  Miss.  R.R.  v.  Wheeler        77 
Ohio  Trust  Co.  v.  Debolt  12 

Oliver  &  Williams  v.  Robert  Piatt    12 
O'Reilly  v.  Morse  71 

Orange  Co.  Bank  v.  Brown  149,  167 
Oswego  Falls  Bridge  v.  Fish  7 


P. 


Pacific  R.R.  Co.  v.  Renshaw  10 

Parks  v.  Alta.  Cal.  Teleg.  Co.      100, 

102,  199,  205,  398 

Parsons  v.  Monteath  383 

Peet  v.  Chicago  &  N.W.  R.R.  Co.  272 

Penn.  Railway  v.  McCloskey        146 

R.R.  Co.  v.  Heister     '  93 

v.  Aspell  64 

Penn.  &  Ohio  Canal  Co.  v.  Webb   18 

Penobscot  B.    Corporation   v. 

Lamson  6 

People  v.  Miss.  &  Atlantic  R.R. 

Co.  79 

Perkins  v.  Portland,  Saco,  &  P. 

R.R.  Co.  272 

Perrine  v.  Chesapeake  &  Dela- 
ware Canal  Co.  36 
Perry  v.  Marsh                                   67 
Phil.   &  Reading  R.R.   Co.   v. 

Derby  69 

Phil.  R.R.  Co.  v.  Wilt  69 

Phil.,  Wilm.,  &  Bait.  R.R.  Co.  v. 

Howard  89 

Phil.  &  Wilm.  R.R.  Co.  v.  The 

State  of  Maryland  38,  89 

Pierce  v.  Emery  37,  39 

Pope  v.  Brandon  37 

Powell  v.  Myers  193 

Prince  Albert  v.  Strange        137,  378 
Pritt  v.  Fairclough  371 

Proprietors  of  Union  Locks   & 

Canals  v.  Towne  18 

Prosser  v.  The  Montreal  Teleg. 

Co.  400 

v.  Henderson  295 

Proudfoot  r.  Montefiore  300 

Providence  Bank  v.  Billings  10 

R. 

Railroad  Co.  v.  Winans  41 

Radcliff  v.  Mayor  of  Brooklyn  34 

Reg.  v.  Inhabitants  of  Denton  11 

v.  York  &  North  Midland 

Railway  78 


XVI 


TABLE    OF    CASES    CITED. 


Section 
Reid's  Case,  in  re  Elec.  Teleg. 

Co.  of  Ireland  21 

Reno  v.  Houan  146 

Reuter  v.  The  Elec.  Teleg.  Co.  20, 

46,  128,  133 

Rex  v.  Nottingham  Old  Water 

Works  78 

v.  United  Kingdom  Teleg. 

Co.  13,  51 

Reynolds  v.  Dunkirk,  etc.  25 

Richmond,  Fred.,   &  Potomac 

R.R.  Co.  v.  Louisa  R.R.  Co.        27 
Riley  v.  Hcarne  213 

Rittenhouse  v.  The  Independent 

Line  of  Telegraph       166,  407,  411 
River  Dun  Navigation"    Co.   v. 

Nortli  Midland  Railway  84 

Robert  Dickey  &   Wife  v.  The 

Maine  Teleg.  Co.  64,  385 

Robins  v.  Embry  39 

Rodgers  v.  Bradshaw  9 

Rothschild  v.  United  Kingdom 

Elec.  Teleg.  Co.  81 

Rudd's  Case,  in  re  Elec.  Teleg. 
Co.  of  Ireland  21 


S. 


Sands  &   Crump  v.  Taylor  & 

Lovett  412 

Sanford  v.  Housatonic  R.R.  Co.    148 
Sarah  Dickey  v.  Maine  Teleg. 

Co.  60,  54,  63 

Scotthorn  v.  South  Staffordshire 

R.  271, 282 

Seneca  Road  Co.  v.  Auburn  & 

Rochester  R.R.  Co.  34 

8.  &  B.  R.R.  Co.  v.  L.  &  N.W. 

R.R.  Co.  40 

Sheldon  &  Wife  v.  Sill  41 

Shields  v.  The  Washington  &  N. 

O.  Teleg.  Co.  97,  143, 167,  212,  403 
Sills  v.  Brown  413 

Skip  v.  Eastern  Counties  R.R.  Co.   67 
Slac-k  &  Co.  v.  Maysville  &  Lex. 

R.R.  Co.  19 

Smith  i.-.  Clark  71 

Smith  &  Randolph  v.  Ind.  Line 

of  Telegraph  412 

South  Carolina  R.R.  Co.  v.  Blake   42 
Spooner  v.  McConnell  80 

Springfield  v.  Conn.  River  Rail- 
way 27,  58 
Stacey  v.  Vermont  Central  Rail- 
way 28 
State  v.  Gould                                106 
v.  Kittery                                 61 
v.  Norwalk  &  Dan.  Turn- 
pike Co.                            42 


State  v.  Overton  104,  106 

v.  Hives  89,  41 

Stephen  v.  Smith  106 

St.  John  v.  Van  Santvoord  278,  293 
Stevenson  v.  The  Montreal 

Teleg.  Co.  174,  280,  393 

Stinson  v.  Gardiner  61 

Storer  v.  Great  Western  Rail- 
way 85 
Submarine  Teleg.  Co.  v.  Dickens    73 
Swindler  v.  Milliard                         383  . 
Syracuse  City  Bank  v.  Davis  8 

T. 

Taft  v.  Wild  man  390 

Tayloe  v.  Merchants'  Ins.  Co.  310, 

321 

Taylor  v.  Steamboat  Robt.  Camp- 
bell 326,  369 
Telegraph  Co.  v.  Wilt  13,  63 
The  American  Express  Co.  v. 

Calvin  Fletcher  193 

The  Bank  of  U.S.  v.  Planters' 

Bank  of  Ga.  4 

The  Boston  &  Roxbury  Mill 

Corp.  v.  James  Newman  26 

The  City  of  Halifax  v.  The 

Nova  Scotia  Elec.  Teleg.  Co.  81 
The  Elec.  Teleg.  Co.  v.  Brett  71 
The  Elec.  Teleg.  Co.  v.  Nott  & 

Others  71, 82 

The  European  &  Am.  Submarine 

Teleg.  Co.  v.  Elliott  81 

The  Huntress  140 

The  Illinois  Cent.  R.R.  Co.  v. 

County  of  McLean  11 

The  Illinois  &  Miss.  Teleg.  Co. 

v.  Kciincilv  77 

The  King  v.  Whitaker  21 

The  Newburv  Turnpike  Co.  v. 

Kastern  R.R.  Co.  26 

the  Phil.  &  Wilm.  R.R.  Co.  v. 

State  of  Maryland  12 

The  Phil.,  Wilm.,  &  Bait.  R.R. 

Co.  v.  Quigley  138 

The  Piqua  Branch  of  the  State 

Bank  ot  <  Hiio  r.  Jacob  Knoop  12 
The  Providence  Bank  v.  Billings  12 
The  South  Eastern  Railway  Co. 

v.  The  European  &  Am.  Elec. 

Teleg.  Co.  &  Friend  81,  70 

The  State  of  New  Jersey  v. 

Wilson  12 

The  State  (Cam.  &  Anib.  R.R. 

Co.)  v.  Corn's  of  Mansfield  26 

The  U.S.  Teleg.  Co.  v.  Wenger  397  a 
The  Western  Teleg.  Co.  v. 

Penniman  &  King  83,  121 


TABLE    OF    CASES    CITED. 


XV11 


Section 

The  Western  Teleg.  Co.  v.  The 
Magnetic  Teleg.  Co.  &  Others  121 

The  Western  Union  Teleg.  Co. 
v.  Carew  102,  104,  124,  149 

Thomas  v.  Boston  &  Prov.  R.R. 
Co.  185,  213 

Thorpe  v.  Rutland  &  Burlington 
Railway  10 

Tipping  v.  Clarke  137,  378 

Thurn  v.  Alta  Cal.  Teleg.  Co.      288, 

432 

Trevor  &  Colgate  v.  Wood  311,  328, 
330,  347,  359 

Troup's  Case,  in  re  Elec.  Teleg. 
Co.  of  Ireland  20 

Troy  v.  The  Cheshire  Railway       30 

Troy  &  Boston  R.R.  Co.  v.  Lee       93 

Troy  &  Boston  R.R.  Co.  v,  Tib- 
bits  17 

Troy  &  Boston  R.R.  Co.  v.  War- 
ren 17 

Troy  &  Canada  Teleg.  Co.  v. 
Connell  17 

Tuckahoe  Canal  Co.  v.  Tucka- 
hoe  R.R.  Co.  8 

Turner  v.  Sheffield,  etc.,  R.R. 
Co.  70 

Turnpike  Co.  v.  Hosmer  42,  59 

U. 

Union  Bank  v.  U.S.  Bank  37 

Locks  &  Canals  v.  Towne      18 
Water   Co.  v.  Murphy's 

Flat  Fluming  Co.  8 

United  States  v.  Harris  24 

U.S.  Teleg.  Co.  v.  Wenger        397  a 

V. 

Vanderbilt  v.  Richmond  Turn- 
pike Co.  69 
Van  Santvoord  v.  St.  John  293 
Varick  v.  Smith  *26 
Vasser  v.  Camp  314 
Vedder  v.  Fellows  104 
Vermont  Central  R.R.  Co.  v. 

Baxter  91 

Vermont  Central  R.R.  Co.   v. 

Town  of  Burlington  26 

Vicksburg  &  J.  R.R.  Co.  v.  Pat- 
ten 138  a 
Visscher  v.  Hudson  River  R.R. 
Co.  32 


w. 

Waddell,  in  the  matter  of 
Walker  v.  Jackson 


379 
241 


I  Section 

Wann  v.  Western  Union  Teleg. 

Co.  142 

Washington  &  N.O.  Teleg.  Co. 

v.  Hobson  &  Sons  412 

Watkins  v.  The  Great  Northern 

Railway  Co.  30 

Watson    v.   The    Ambergate, 
Nottingham,  &  Boston  Rail- 
way Co.  282 
Webb  v.  Manchester  &  Leeds 

R.R.  Co.  80,  386 

Weed  v.  Sar.  &  S.  R.R.  Co.  275 

Welsh  v.  Barrett  371 

West  River  Bridge   Co.   v. 

Dix  5,  7,  9,  27 

|  Western  Union  Teleg.  Co.  v. 

Carew    113,  114,  149,  217,  243,  252 
Western  Union  Teleg.  Co.  v. 

Ward  168,  188,  215,  434 

White  River  Turnpike  Co.  v. 

Vt.  Central  R.R.  Co.  9,  58 

White  v.  Syracuse  &  Utica 

R.R.  Co.  10 

White  v.  Nichols  138  a 

Whit  well,   Bond,   et  al.   v. 

Warner  20 

Wibert  v.  N.Y.  &  Erie  R.R.  Co.   129 

Williams  v.  Barton  389 

v.  Bicknell  337,  360 

v.  Hartford  &  New 

Haven  R.R.  Co.        28 
v.  N.Y.  Central  R.R. 

Co.  2 

v.  Reynolds  390 

v.  Williams  137,  378 

Willink  v.  Morris  Canal  &  Bank- 
ing Co.  37 
Wilson  v.  York  N.  &  B.  Rail- 
way                                      271,  292 
Winch  v.  Railway  Co.                       40 
Woolsey  v.  Dodge  12 
v.  Judd                              97 
Worcester  v.  Western  R.R. 

Corp.  26 

Works,  Saml.,  v.  Junction  R. 

R.  Co.  •     77 

Wright  v.  Boughton  293 

v.  Wilcox  69 

Wyld  v.  Pickford  146 

Y. 

Yarborough   v.  Bank  of  Eng- 
land 138 

York,  Newcastle,  &  Bernwick 
Railway  v.  Crisp  146 

Young  v.  The  Inhabitants  of 
Yarmouth  51,  55 

Yovatt  v.  Winyard  137,  378 


PART    I. 


OF   THINGS   COMMON   TO  TELEGRAPH  COMPANIES  AND 
OTHER  CORPORATIONS. 


THE    LAW  OF    TELEGRAPHS. 


PAET    I. 

OF  THINGS   COMMON  TO  TELEGEAPH  COMPANIES  AND 
OTHER  CORPORATIONS. 


CHAPTER   I. 

TELEGRAPH      COMPANIES      IN     THEIR     RELATION     TO     THE 

STATE. 

§  1.  THE  Law  of  Telegraphs  as  operated  by  incor- 
porated companies  is  the  subject  of  this  volume. 

§  2.  No  reason  is  perceived  why  a  private  person 
would  not  have  the  right  to  construct  telegraph  lines, 
and  to  carry  on  the  business  of  transmitting  messages 
over  such  lines  for  a  reward,  without  authority  from 
the  State,  provided  he  had  procured  the  right  of  way 
by  purchase.  The  relation  in  which  he  would  stand 
to  his  employer  would  be  similar  to  that  of  bailee  for 
hire,  and  he  would  be  under  the  same  character  of 
obligation  as  other  bailees. 

He  would  not,  however,  have  the  right  to  erect  his 
posts,  and  construct  his  lines,  upon  the  public  high- 
way, without  authority  from  the  State.1  He  might 
cross  navigable  streams,  if  he  had  the  right  of  way 
over  the  lands  on  each  side  of  the  stream,  provided 

1  Attorney-General  v.  The  United  Kingdom  .Elec.  Teleg.  Co.  30 
Beav.  292. 

13] 


§  3  TELEGRAPH    COMPANIES.  [PART    I. 

the  lines  were  sunk  under  the  stream,  or  placed  above 
the  stream,  so  as  not  to  interfere  with  navigation.  He 
might,  also,  construct  telegraph  lines  along  the  route 
of  a  railroad,  with  the  consent  of  the  railroad  com- 
pany to  the  use  of  its  bed,  unless  such  use  of  the  land 
might  be  considered  an  additional  servitude  upon  the 
land,  requiring  the  consent  of  the  owner  of  the  fee.1 

§  3.  All  telegraph  lines  in  England,  Canada,  and 
the  United  States  are  operated  by  companies,  either 
under  the  authority  of  general  laws  applicable  alike 
to  all  companies,2  or  by  express  charter. 

These  general  laws  provide  that  the  organization 
may  be  made  by  compliance  with  the  terms  pre- 
scribed ;  and  with  a  provision  authorizing  their 
construction  along  and  upon  highways  and  across 
navigable  streams,  so  as  not  to  interfere  with  travel, 
or  obstruct  navigation ;  and,  in  some  of  the  Amer- 
ican States,  authorizing  towns  to  regulate  the  erection 
of  posts,  lines,  etc.,  and  to  change  their  location  on  the 
streets  as  the  interest  of  the  town  may  require.  These 
general  laws  also  allow  the  company  to  make  reason- 
able rules  and  regulations  for  conducting  its  business ; 
and  they  require  messages  to  be  transmitted  with  im- 
partiality and  good  faith,  and  in  the  order  of  time  in 
which  they  are  received,  with  a  preference,  however, 
by  the  Statutes  of  some  of  the  States,  to  messages  con- 
veying intelligence  public,  or  essential  to  public  jus- 
tice ;  a  uniform  rate  of  charges ;  secrecy  on  the  part 
of  the  company's  operator,  and  other  agents  and  ser- 
vants, in  reference  to  the  contents  of  all  messages. 

1  Williams  v.  N.Y.  Central  R.R.  Co.  16  N.Y.  R.  97. 
*  See  Appendix. 
[4] 


CHAP.  I.]        THEIR    RELATION    TO    THE    STATE.  §  3 

They  prescribe  penalties  for  the  violation  of  these  re- 
quirements ;  and,  in  some  of  the  States,  subject  the 
company  to  indictment  for  violation  of  certain  duties, 
and  also  make  it  an  indictable  offence  on  the  part 
Of  individuals  to  injure  the  posts  or  lines  of  the  com- 
pany, or  to  interrupt  the  message  in  the  course  of  its 
transmission.1  Provision  is  also  made  by  statute  in 
England,  Canada,  and  by  act  of  Congress  in  the  United 
States,  authorizing  the  Government  to  take  possession 
and  control  of  telegraph  lines  for  the  public  service 
whenever  the  exigencies  of  the  State  may  require, 
upon  making  compensation  to  the  companies  for  such 
use  of  their  line.2 

1  See  Appendix. 

2  26  &  27  Viet.  (1863),  c.  112,  §  52;  consolidated  Statutes  of  Canada, 
c.  Ixvii.  §  17,  18;  Thirty-seventh  Congress,  Sess.  2,  c.  15  (1862). 

By  the  26  &  27  Viet.  c.  112,  §  52,  it  is  provided:  "Where,  in  the 
opinion  of  one  of  Her  Majesty's  principal  Secretaries  of  State,  an  emer- 
gency has  arisen  in  which  it  is  expedient  for  the  public  service  that  Her 
Majesty's  Government  should  have  control  over  the  transmission  of  mes- 
sages by  the  company's  telegraph,  the  Secretary  of  State,  by  warrant  un- 
der his  hand,  may  direct  and  cause  the  company's  works,  or  any  part 
thereof,  to  be  taken  possession  of  in  the  name  and  in  behalf  of  Her 
Majesty,  and  to  be  used  for  Her  Majesty's  service,  and,  subject  thereto, 
for  such  ordinary  service  as  may  seem  fit,  or  may  direct  and  authorize 
such  persons  as  he  thinks  fit,  to  assume  the  control  of  the  transmission  of 
messages  by  the  company's  telegraph,  either  wholly  or  in  part,  and  in  such 
manner  as  he  directs ; "  and  provision  is  made  for  compensation  to  the 
company  for  any  loss  of  profit  sustained  by  reason  of  such  appropriation  to 
the  public  use. 

The  Consolidated  Statutes  of  Canada,  c.  67,  §§  17,  18,  provide:  — 
Her  Majesty  may  at  any  time  assume,  and  for  any  length  of  time  re- 
tain, possession  of  any  such  telegraph  line,  and  of  all  things  necessary  to 
the  sufficient  working  thereof,  and  may  for  the  same  time  require  the  ex- 
clusive service  of  the  operators  and  other  persons  employed  in  working 
such  line,  and  the  company  shall  give  up  possession  thereof,  and  the  oper- 
ator and  other  persons  shall,  during  the  time  of  such  possession,  diligently 
and  faithfully  obey  such  orders,  and  transmit  and  receive  such  despatches 

[5] 


§  4  TELEGRAPH    COMPANIES.  [PART   I. 

§  4.  When  companies  or  individuals  organize  under 
such  general  laws,  the  same  rights  are  conferred,  and 
the  same  obligations  imposed,  as  if  the  terms  and  pro- 
as they  may  be  required  to  transmit  and  receive  by  any  duly  authorized 
officer  of  the  Provisional  Government,  under  a  penalty,  &c.  Sec.  18  pro- 
vides that  Her  Majesty  may,  at  any  time  after  the  commencement  of  a 
telegraph  line  under  this  act,  and  after  two  months'  notice  to  the  company, 
assume  the  possession  and  property  thereof,  and  upon  such  assumption, 
such  line  and  all  the  property,  real  or  personal,  essential  to  the  working 
thereof,  and  all  the  rights  and  privileges  of  the  company  as  regards  such 
line,  shall  be  vested  in  the  Crown. 

The  Act  of  Congress  of  January  31,  1862,  c.  15,  provides  as  follows: 
That  the  President  of  the  United  States,  when  in  his  judgment  the  public 
safety  may  require  it,  be,  and  he  is  hereby  authorized  to  take  possession  of 
any  or  all  the  telegraph  lines  in  the  United  States,  their  offices  and  ap- 
purtenances ;  to  take  possession  of  any  or  all  the  railroad  lines  in  the 
United  States,  their  rolling  stock,  their  offices,  shops,  buildings,  and  all 
their  appendages  and  appurtenances ;  to  prescribe  rules  and  regulations 
for  the  holding,  using,  and  maintaining  of  the  aforesaid  telegraph  and  rail- 
road lines,  and  to  extend,  repair,  and  complete  the  same  in  the  manner 
most  conducive  to  the  safety  and  interest  of  the  Government,  to  place 
under  military  control  all  the  officers,  agents,  and  employees  belonging  to 
the  telegraph  and  railroad  lines  thus  taken  possession  of  by  the  President, 
so  that  they  shall  be  considered  as  a  post  road  and  a  part  of  the  military 
establishment  of  the  United  States,  subject  to  all  the  restrictions  imposed 
by  the  rules  and  articles  of  war.  Sec.  2  provides  for  the  punishment  of 
those  who  attempt  to  obstruct  the  Government  in  the  use  of  the  same,  or 
who  may  attempt  to  injure  or  destroy  the  property  of  such  telegraph  or 
railroad  companies. 

Sec.  3  provides  for  the  appointment  of  Commissioners  to  determine  the 
damages  suffered,  or  the  compensation  to  which  any  telegraph  or  railroad 
company  may  be  entitled  by  reason  of  such  use  by  the  Government.  The 
5th  section  of  this  act  provides  that  it  shall  not  be  in  force  any  longer  than 
is  necessary  for  the  suppression  of  the  rebellion. 

The  Act  of  Congress,  24  July,  1866,  looks  to  the  ultimate  absorption 
of  the  telegraph  by  the  Government.  After  giving  the  right  of  way  over 
and  along  public  domains,  military  or  post  roads  of  the  United  States,  and 
over,  under,  or  across  navigable  streams,  so  as  not  to  obstruct ;  and  also 
leave  to  take  and  use  materials  for  construction  and  maintenance,  and  a 
right  to  pre-empt  and  use  unoccupied  lands  for  stations,  not  exceeding 
forty  acres  to  each  station,  the  stations  to  be  fifteen  miles  apart ;  the  act 
then  provides  that  the  Postmaster- General  shall  fix  rates  for  despatches 
[6J 


CHAP.  I.]    THEIR  RELATION  TO  THE  STATE.         §  5 

visions  of  such  general  laws  were  embraced  in  a  special 
act  of  incorporation. 

Whether  organized  under  general  laws,  or  special 
acts  of  incorporation,  telegraph  companies  are  private 
corporations ;  and  this  would  be  so,  although  the  State 
were  the  principal  or  sole  owner  of  the  stock.1 

They  have  such  powers  as  are  expressly  granted, 
or  such  as  are  necessary  to  carry  into  effect  the  powers 
expressly  granted,  and  none  other ;  and  when  or- 
ganized under  such  general  law,  or  special  act,  the 
privilege  of  operating  its  line  is  a  franchise. 

§  5.  The  legislature,  then,  having  the  power  to 
grant,  either  by  special  act  of  incorporation,  or  by 
general  law,  the  privilege  to  individuals  or  associa- 
tions, of  operating  a  telegraph  line,  when  it  is  ac- 

between  different  departments  of  the  Government,  which  shall  have 
priority. 

Sec.  3  is  most  important,  and  provides  "  That  the  rights  and  privi- 
leges hereby  granted  shall  not  be  transferred  by  any  company  acting  un- 
der this  act  to  any  other  corporation,  association  or  person ;  provided, 
however,  That  the  United  States  may  at  any  time  after  the  expiration  of 
five  years  from  the  date  of  the  passage  of  this  act,  for  postal,  military,  or 
other  purposes,  purchase  all  the  telegraph  lines,  property,  and  effects  of 
any  or  all  of  said  companies,  at  an  appraised  value,  to  be  ascertained  by 
five  competent,  disinterested  persons,  two  of  whom  shall  be  selected  by  the 
Postmaster-General  of  the  United  States,  two  by  the  company  interested, 
and  one  by  the  four  so  previously  selected." 

Sec.  4  provides  that  the  company  shall  file  with  the  Postmaster-Gen- 
eral a  written  acceptance  of  these  restrictions  and  obligations,  before  ex- 
ercising any  of  the  powers  and  privileges.  See  Appendix. 

In  Louisiana  and  Tennessee,  it  is  provided,  that  in  case  of  war  or  in- 
surrection, or  civil  commotion,  the  operator,  upon  application  of  an  officer 
of  the  State  or  the  United  States,  must  give  his  communication  immediate 
transmission,  and  for  failure  so  to  do,  is  guilty  of  a  misdemeanor.  See 
Appendix. 

1  The  Bank  of  The  United  States  v.  The  Planters'  Bank  of  Georgia, 
9  Wheat.  904. 

[7] 


§  7  TELEGRAPH  COMPANIES.        [PART  I. 

cepted  by  the  individual  or  association,  in  the  manner 
designated,  it  becomes  a  contract  between  the  State 
on  the  one  part,  and  the  individual  or  company  on 
the  other.1 

The  subject-matter  of  this  contract  is  a  franchise ; 
and  this  franchise  is  private  property.2 

§  6.  It  is  not  essential  that  there  should  be  any 
formal  act  of  acceptance,  unless  there  be  a  mode  of 
acceptance  prescribed  by  the  charter  or  general  law 
under  which  the  organization  is  made ;  but  when 
such  is  the  case,  the  requirement  must  be  complied 
with.3 

Ordinarily,  the  acceptance  is  sufficiently  signified  by 
the  subscription  of  stock.  It  may  be  inferred  from 
acts  done  in  pursuance  of  the  provisions  of  the  char- 
ter.4 Indeed,  it  frequently  happens,  that  the  ac- 
ceptance is  to  be  inferred  from  the  course  of  conduct 
of  the  company,  rather  than  from  any  distinct  act  of 
acceptance.5 

§  7.  When  such  acceptance  is  made  by  the  individ- 
ual or  association,  the  contract  between  the  State  and 

1  Dartmouth  College  v.  Woodward,  4  Wheat.  518;  Fletcher  v.  Peck, 
6  Cranch,  87;  Boston  &  Lowell  R.R.  Corp.  v.  Salem  &  Lowell  R.R.  Co. 
2  Gray,  1. 

2  West  River  Bridge  Co.  v.  Dix,  6  How.  U.S.  507,  534;  Arming- 
ton  r.  Barnet,  15  Vt.  745 ;  Cal.  State  Teleg.  Co.  ».  Alta  Teleg.  Co.  22 
Cal.  398. 

3  Green  v.  Seymour,  8  Sandf.  N.Y.  Ch.  285. 

4  Penobscot  B.  Corporation  v.  Lamson,  16  Maine,  224 ;  Bank  of  U.  S. 
v.  Dandridge,  12  Wheat.  71;  Cleaves  v.  Brick  Church  Turnpike  Co.  1 
Sneed,  491. 

6  Redfield  on  Railways,  p.  10,  ed.  1858.     Since  writing  the  text,  the 
new  and  greatly  enlarged  edition  (3d)  has  come  to  hand,  causing  a  neces- 
sity for  a  change  in  noting  our  citations.     For  this  reference  see  1  Red- 
field  on  Railways,  §  19,  subd.  2. 
[8] 


CHAP.  -I.]         THEIR   RELATION    TO    THE    STATE.  §  8 

the  party  incorporated  is  complete.  This  contract 
the  legislature  cannot  impair.  The  constitutional 
prohibition  upon  impairing  the  obligation  of  contracts, 
as  applied  to  the  power  of  legislatures  over  charters 
or  general  laws  of  incorporation,  is  clearly  settled 
and  accurately  defined ;  and  has  become  a  fixed 
and  well-recognized  principle  of  American  jurispru- 
dence.1 

§  8.  The  terms  used  in  the  act  of  incorporation 
determine  that  the  grant  is,  or  is  not,  exclusive.  An 
exclusive  franchise  is,  however,  not  to  be  implied.2 
The  legislature  has  undoubtedly  the  right  to  grant 
exclusive  franchises  ;  and  the  exercise  of  this  right  is 
solely  within  the  province  of  the  legislature  to  deter- 
mine. Exclusive  franchises  may  be  granted  to  indi- 
viduals as  well  as  to  corporations ;  and  incorporated 
companies  have  the  right  to  purchase  such  exclusive 
franchises  from  individuals,  and  to  succeed  to  all  the 
rights  and  privileges  which  the  franchises  confer. 
As  where  the  legislature  of  California  had  granted 
to  certain  individuals  the  exclusive  privilege  and 
right  to  construct  and  put  in  operation  a  telegraph 
line  from  the  city  of  San  Francisco  to  the  city  of 
Marysville,  by  the  way  of  the  cities  of  San  Jose, 
Stockton,  and  Sacramento,  with  a  proviso,  "  that  no 
person  shall  be  allowed  to  locate  or  construct  or  run 
any  telegraph  line,  or  any  portion  thereof,  within  a 
half  a  mile  of  the  line  or  route  selected  by  the  indi- 

1  Oswego  Falls  Bridge  Co.  v.  Fish,  1  Barb.  Ch.  547;  Charles  River 
Bridge  Co.  v.  Warren  Bridge  Co.  11  Pet.  420;  West  River  Bridge  Co. 
v.  Dix,  6  How.  U.S.  507-534. 

2  Charles  River  Bridge  Co.  v.  Warren  Bridge  Co.  11  Peters,  420; 
S.C.  6  Pick.  376. 

[9] 


§  8  TELEGRAPH    COMPANIES.  [PART    I. 

viduals  to  whom  the  right  was  given,"  authorizing  the 
construction  of  local  side  lines;  but  "not  to  be  con- 
structed, 'nor  offices  established  so  as  to  do  business 
directly  or  indirectly  between  the  cities  aforesaid," 
and  the  said  individuals  upon  whom  this  exclusive 
franchise  was  conferred,  sold  and  assigned  the  same 
to  The  State  Telegraph  Company,  —  a  company  or- 
ganized under  the  general  corporation  law  of  the 
State,  and  which  company  constructed  and  put  in 
operation  this  line  of  telegraph,  and  complied  in  all 
respects  with  the  conditions  of  the  act  granting  the 
exclusive  privilege.  And  The  Alta  Telegraph  Com- 
pany, incorporated  under  the  act  of  1850,  had,  sub- 
sequent to  the  purchase  by  The  State  Telegraph 
Company  established  a  line  of  telegraph  between 
San  Francisco,  San  Jose,  and  Sacramento,  and  with- 
in less  than  half  a  mile  of  the  line  established  by  The 
State  Telegraph  Company.  The  Alta  Telegraph 
Company  was  enjoined  from  operating  its  line,  at  the 
suit  of  The  State  Telegraph  Company. 

The  Court  held,  that  the  legislature  had  the  power 
to  grant  the  exclusive  franchise  to  the  individuals ; 
that  The  State  Telegraph  Company  had  the  right  to 
purchase  and  enjoy  such  exclusive  franchise,  and  to 
exercise  the  exclusive  right  of  operating  its  line  be- 
tween these  cities,  and  were  entitled  to  an  injunction 
upon  any  interference  with  such,  exclusive  privilege. 
It  was  further  held,  that  The  Alta  Telegraph  Com- 
pany could  not  question  the  right  of  The  State 
Telegraph  Company  to  purchase  such  exclusive  fran- 
chise; that  it  could  only  be  a  question  between 
The  State  Telegraph  Company  and  the  State,  to  be 

[10] 


CHAP.  I.]         THEIR    RELATION    TO    THE    STATE.  §  8 

determined  in  a  proceeding  by  the  latter  for  a  for- 
feiture.1 

1  California  State  Telegraph  Co.  v.  Alta  Telegraph  Co.  22  Cal. 
398. 

The  act  granting  the  exclusive  franchise  was  as  follows :  — 

"  The  right  and  privilege  is  hereby  granted  to  Oliver  E.  Allen  and 
Clark  Burnham,  or  their  assigns,  to  construct  and  put  in  operation  an 
electro-magnetic  telegraph  line  from  the  city  of  San  Francisco  to  the 
city  of  Marysville,  by  the  way  of  the  cities  of  San  Jose,  Stockton,  and 
Sacramento,  with  the  right  of  way  over  any  lands* belonging  to  this  State, 
and  on  or  along  any  streets,  roads,  or  highways,  or  across  any  stream  or 
streams,  provided,  they  do  not  obstruct  the  same ;  and  no  person  or  per- 
sons shall  be  allowed  to  locate  or  construct  or  run  any  telegraph  line,  or 
any  portion  thereof,  within  a  half  a  mile  of  the  line  or  route  selected  by 
the  said  Allen,  Burnham,  or  their  assigns,  except  that  when  within  a  half 
a  mile  of  any  incorporated  city,  the  proprietors  of  any  similar  line  of 
telegraph  may  enter  said  city  and  depart  therefrom,  making  their  station 
therein  within  twenty  yards  of  the  station  of  said  Allen  &  Burnham,  or 
their  successors,  for  the  term  of  fifteen  years ;  provided,  that  the  said  above- 
named  parties  or  their  assigns  shall,  within  eighteen  months  from  the  pas- 
sage of  this  act,  construct,  and  put  in  operation,  a  telegraph  line  from  the 
city  of  San  Francisco  to  the  city  of  Marysville,  by  the  way  of  San  Jose, 
Stockton,  and  Sacramento ;  provided,  also,  that  this  act  shall  not  prohibit 
the  construction  of  local  side  lines.  But  lines  shall  not  be  constructed, 
nor  offices  established,  so  as  to  do  business  directly  or  indirectly  between 
the  cities  aforesaid ;  but  side  lines  may  establish  offices  in  said  cities  for 
the  transmission  of  communications  to  and  from  the  main  line.  This  line 
shall  be  bound  to  do  the  business  of  said  line,  and  to  transmit  all  dispatches 
in  the  order  in  which  they  are  received,  under  the  penalty  of  one  hundred 
dollars,  to  be  recovered  with  costs  of  suit  by  the  person  or  persons  whose 
despatch  is  postponed  out  of  its  order  as  herein  prescribed.  .  .  . 

"  Sec.  2.  No  existing  law  shall  be  so  construed  as  to  conflict  or  in- 
terfere with  the  provisions  of  this  act ;  provided,  that  the  owners  of  this 
line  shall  at  all  times  conform  to  the  present  law  of  this  State  concern- 
ing telegraph  companies,  so  far  as  it  relates  to  the  transmission  of  mes- 
sages." 

Crocker,  J.,  said,  "  This  is  an  appeal  from  an  order  dissolving  a  tem- 
porary injunction,  which  was  granted  and  dissolved  upon  the  complaint 
alone.  The  complaint  alleges,  that  on  the  first  day  of  June,  1853,  the 
plaintiff  was  duly  incorporated  under  the  general  corporation  law  of  this 
State,  passed  April  22, 1860,  for  the  purpose  of  constructing  and  operating 
an  electro-magnetic  telegraph  line  from  the  city  of  San  Francisco  to  the 
city  of  Marysville,  by  the  way  of  San  Jose",  Stockton,  and  Sacramento ; 

[11] 


§  8  TELEGRAPH  COMPANIES.        [PART  I. 

Unless  the  grant  is  exclusive,  there  is  no  prohi- 
bition upon  the  legislature  from  granting  similar 

that,  immediately  thereafter,  Allen  &  Burnham  assigned  to  them  all  the 
rights  and  privileges  granted  to  them  by  the  act  of  May  3.  1852  (Statutes 
of  1852,  169) ;  that  they  afterwards  constructed  and  put  in  operation  the 
said  line  of  telegraph  at  an  expense  of  $250,000,  and  have  in  all  respects 
complied  with  the  conditions  of  said  act;  that  the  said  Alta  California 
Telegraph  Company  is  a  corporation  formed  under  the  Act  of  1850,  and 
has,  in  concert  with  th«  other  defendants,  constructed  a  telegraph  line  be- 
tween San  Francisco,  San  Jose,  and  Sacramento ;  have  established  offices 
in  said  cities,  and  are  transacting  a  telegraph  business  therein ;  that  de- 
fendant's line  runs  in  a  large  part  of  its  course  within  less  than  half  a  mile 
of  plaintiff's  line;  that  they  have  suffered  great  injury  thereby,  in  the  sum 
of  S-J50;  that  the  defendants  intend  to  continue  the  business;  that  it  is 
utterly  impossible  for  the  plaintiff  to  ascertain  and  prove  the  amount  of 
business  done  by  the  defendants,  and  the  injury  would  therefore  be  irrepa- 
rable; and  pray  for  a  perpetual  injunction  against  the  defendants,  restrain- 
ing them  from  doing  any  telegraph  business  between  said  cities. 

"  The  case  presents  the  following  questions  for  our  adjudication  :  1st.  Is 
the  act  of  May  3,  1852,  granting  certain  exclusive  privileges  to  Allen  & 
Burnham,  constitutional?  2d.  Have  the  plaintiffs  the  power  or  right  to 
purchase,  hold,  and  enjoy  this  exclusive  privilege  ? 

"  The  determination  of  these  matters  involves  some  important  constitu- 
tional questions  which  have  received  very  little  judicial  consideration,  and 
we  must  therefore  mainly  rely  upon  those  general  rules  of  constitutional 
construction  which  are  applicable  to  questions  of  this  character.  One  rule 
is,  that  it  is  competent  for  the  legislature  to  exercise  all  legislative  powers 
not  forbidden  by  the  Constitution,  or  delegated  to  the  National  Govern- 
ment, or  prohibited  by  the  Constitution  of  the  United  States;  and  that 
an  act  of  the  legislature  is  to  be  held  as  void  only  when  its  repugnance 
to  the  State  or  National  Constitution  is  clear  beyond  a  reasonable  doubt. 
(Cohen  v.  Wright,  22  Cal.  295,  and  cases  there  cited.) 

"  1.  The  first  point  is,  whether  the  act  of  May  3, 1852,  is  repugnant  to 
the  Constitution.  .  .  . 

"  This  act  confers  certain  special  privileges,  in  the  nature  of  a  franchise, 
upon  Allen  &  Burnham. 

"  Franchises  are  privileges  derived  from  the  government,  vested  either 
in  individuals  or  private  or  public  corporations,  and  are  of  various  kinds ; 
such  as  the  privilege  of  exercising  the  powers  of  a  corporation,  of  having 
wait's,  wrecks,  estrays;  the  right  to  collect  tolls  on  a  road,  bridge,  ferry, 
or  wharf;  the  privilege  of  fishing,  or  taking  game ;  and  numerous  others 
which  might  be  referred  to.  In  England,  a  large  class  of  franchises  exists 
[12] 


CHAP.  I.]         THEIR    RELATION    TO    THE    STATE.  §  8 

franchises  to   another  corporation,  although   it  may 
materially  injure  the  emoluments  of  the  first.     Such 

which  are  unknown  to  our  law ;  but  some  are  of  more  extensive  use  here 
than  there,  especially  corporate  franchises. 

"  The  grant  of  a  franchise  is  in  the  nature  of  a  vested  right  of  property ; 
subject,  however,  in  most  cases,  to  the  performance  of  conditions  or  duties 
on  the  part  of  the  grantees. 

"  They  generally  involve  important  duties  of  a  public  character,  often 
onerous  upon  the  grantees.  They  are  necessarily  exclusive  in  their  charac- 
ter ;  otherwise,  their  value  would  be  liable  to  be  destroyed  or  seriously  im- 
paired. So  long  as  the  grantee  fulfils  the  conditions  and  performs  the  duties 
imposed  upon  him  by  the  terms  of  the  grant,  he  has  a  vested  right  which 
cannot  be  taken  away,  or  otherwise  impaired  by  the  government,  any  more 
than  any  other  property.  And  even  though  the  grant  does  not  declare 
the  privilege  to  be  exclusive,  yet  that  is  necessarily  implied  from  its  nature. 
In  the  grant  of  a  bridge,  ferry,  turnpike,  or  railroad,  it  is  implied  that  the 
government  will  not,  either  directly  or  indirectly,  interfere  with  it  so  as 
to  destroy  or  injure  it.  Franchises  are  derived  entirely  under  grants  from 
the  legislature,  either  by  general  or  special  laws.  There  is  a  large  class 
of  special  privileges  conferred  upon  public  bodies  or  private  individuals, 
for  numerous  purposes  relating  to  the  public  interest,  which  are  franchises. 
The  most  numerous  known  to  American  law  are  those  of  corporate  and 
banking  privileges ;  and  they  have  multiplied  beyond  all  precedent  under 
the  system  of  general  incorporation  laws,  by  which  these  privileges,  instead 
of  being  conferred  on  a  few,  are  open  to  all.  .  .  . 

"  The  law  of  this  State  regulating  ferries  and  toll  bridges  gives  the  own- 
ers an  exclusive  privilege,  by  prohibiting  the  establishment  of  any  other 
ferry  or  bridge  within  one  mile.  (Wood's  Dig.  460.)  And  this  court  has 
always  protected  the  parties  in  the  enjoyment  of  these  exclusive  privi- 
leges. (Hanson  v.  Webb,  3  Cal.  137 ;  Norris  v.  Farmers  &  Teamsters  Co. 
6  ib.  594;  Chard  v.  Stone,  7  ib.  117.)  In  many  cases,  however,  the  law 
conferring  franchises,  such  as  turnpike  roads,  does  not  confer  any  exclu- 
sive privileges,  and  they  are  then  open  to  competition.  (Indian  Canon 
Road  Co.  v.  Robinson,  13  ib.  519.)  This  question,  whether  the  privilege 
shall  be  exclusive  or  not,  depends  entirely  upon  the  wise  discretion  of  the 
legislature.  The  granting  of  franchises,  whether  exclusive  in  their  char- 
acter or  not,  is  one  of  the  ordinary  powers  of  legislation,  and  as  such  can 
be  exercised  by  the  legislature  of  the  State,  controlled,  however,  by  the 
restrictions  imposed  by  the  Constitution.  .  .  . 

.  "  2.  The  next  and  most  important  question  is,  whether  the  plaintiffs ,  a 
corporation,  had  the  power  to  purchase  and  hold  the  special  privileges 
granted  by  the  act  to  Allen  &  Burnham.  It  is  not  disputed  that  those 
grantees  had  the  power  to  sell  and  convey,  for  the  act  specially  makes 

[13] 


§  8  TELEGRAPH    COMPANIES.  [PART  I. 

subsequent  charter  can  be  granted,  unless  the  first 
charter  by  express  terms,  or  by  natural  and  proper 

the  grant  to  them  '  or  their  assigns ; '  thus  clearly  making  the  privilege 
assignable.  But  it  is  urged  that  the  clause  in  the  Constitution  which 
prohibits  the  legislature  from  creating  a  private  corporation  by  special 
act,  equally  prohibits  them  from  conferring  any  powers  or  privileges  of  a 
corporate  character  by  special  law,  and  that  all  the  powers  and  privileges 
which  a  corporation  can  exercise  or  hold  must  be  derived  from  a  general 
law,  applicable  alike  to  all  corporations. 

"  It  is  clear  that  the  Constitution  prohibits  the  legislature  from  '  creat- 
ing '  corporations  by  special  act,  except  for  municipal  purposes ;  and  it  is 
clear  that  this  prohibition  extends  only  to  their  '  creation.'  There  is 
nothing  in  the  language  used  which  directly  or  impliedly  prohibits  the 
legislature  from  directly  granting  to  a  corporation,  already  in  existence, 
and  created  under  the  general  law,  special  privileges  in  the  nature  of  a 
franchise,  by  a  special  act,  or  prohibiting  a  corporation  from  purchasing  or 
holding  such  franchises  which  may  have  been  granted  to  others.  To 
give  the  Constitution  any  such  effect,  we  would  be  compelled  to  interpo- 
late terms  not  used,  and  which  cannot  be  implied,  without  a  perversion  of 
the  language  employed 

"  As  we  have  already  seen,  a  franchise  is  in  the  nature  of  property ;  it  is 
a  vested  right,  a  subject  of  purchase  and  enjoyment  by  all  who  are  capable 
of  purchasing,  holding,  and  enjoying  property,  by  individuals,  partner- 
ships, joint-stock  associations,  and  also  by  corporations  when  it  is  of  such 
a  character  as  to  be  reasonably  included  in  or  useful  in  carrying  out  the 
objects  and  purposes  for  which  the  corporation  was  created 

"  As  a  general  rule,  a  corporation  has  power  to  make  all  such  contracts 
as  are  necessary  and  usual  in  the  course  of  its  business,  as  means  to  enable 
it  to  attain  the  object  for  which  it  was  created.  The  creation  of  a  corpo- 
ration for  a  specific  purpose,  implies  a  power  to  use  the  necessary  and 
usual  means  to  effect  that  purpose.  (Angell  &  Ames  on  Corp.  §  271  ; 
Union  Water  Co.  v.  Murphy's  Flat  Fluming  Co.,  decided  at  the  present 
term.) 

"  I  hold,  then,  that  the  plaintiffs,  as  a  corporation,  were  capable  of 
receiving  a  grant  of  these  special  privileges  directly  from  the  legislature, 
and  of  purchasing  them  from  the  grantees. 

"  It  is  argued,  however,  that  the  provision  in  the  Act  of  May  3,  1852, 
that  '  no  existing  law  shall  be  so  construed  as  to  conflict  or  interfere  with 
the  provisions  of  this  act,'  operates  as  a  repeal  of  the  general  Corpora- 
tion Law,  so  far  as  that  law  permits  the  formation  of  telegraph  companies 
to  construct  lines  between  the  cities  named  in  the  Act  of  1852 ;  and  there- 
fore the  plaintiffs,  being  organized  to  construct  such  a  line,  are  not  a 
corporation,  and  have  no  power  to  purchase  or  hold  the  privilege  granted 
[14] 


CHAP.  I.]        THEIR   RELATION    TO   THE    STATE.  §  8 

construction,  is   exclusive   of  the  enjoyment  of  such 

to  Allen  &  Burnham.  This  clause  has  more  the  effect  of  a  rule  of  con- 
struction than  of  a  repeal  of  any  existing  law.  The  evident  meaning  is, 
that  the  privilege  of  the  right  of  way,  &c.,  granted  to  telegraph  companies 
formed  under  the  general  law,  shall  not  conflict  or  interfere  with  the 
special  privileges  granted  by  the  act.  There  is  nothing  in  it  prohibiting 
or  taking  away  the  right  of  forming  corporations  to  build  lines  between 
those  cities;  but,  if  formed,  they  must  take  subject  to  the  prior  exclusive 
privileges  of  the  grantees,  who  might  waive  their  right,  or  abandon  or 
forfeit  them,  or  transfer  the  whole,  or  a  part,  to  such  corporations.  To 
give  it  the  effect  claimed  would  require  a  more  clear  and  explicit  ex- 
pression of  legislative  intention  than  is  contained  in  this  clause.  The 
Constitution  of  Indiana  ordains  that  'corporations  other  than  banking, 
shall  not  be  created  by  special  act,  but  may  be  formed  under  general  laws ; ' 
and  it  was  held  that '  the  Constitution  of  the  State  authorizes  the  legis- 
lature to  create  corporations,  and  imposes  no  limit  as  to  the  powers  to  be 
conferred  on  them ;  no  clause  confining  their  action  to  objects  entirely 
disconnected  with  any  thing  outside  the  corporate  limits.'  (City  of 
Aurora  v.  West,  9  Ind.  85.)  The  legislature  may  give  additional  powers, 
from  time  to  time,  to  corporations ;  and  acts  of  the  corporation,  in  pursu- 
ance of  such  authority,  are  binding.  (Gifford  v.  New  Jersey  R.R.  Co.  2 
Stock.,  c.  171.)  And  special  powers  and  privileges  may  be  conferred  on 
existing  corporations.  The  words  '  create  a  charter,'  used  in  the  Con- 
stitution, mean  to  make  a  charter  which  never  existed  before.  (C.  P. 
&  A.  R.R.  Co.  v.  Erie,  37  Pa.  St.  380. 

"  Under  a  similar  clause  in  the  Constitution  of  New  York  relating  to 
banks,  it  was  held,  that  an  act  declaring  that  a  certain  bank  should  be 
deemed  to  be  a  valid  corporation,  and  to  have  been  duly  organized,  not- 
withstanding any  error,  irregularity,  or  insufficiency  in  the  proceedings 
organizing  it  under  the  general,  law,  did  not  create  a  corporation,  but  only 
remedied  defects  in  the  organization  of  one  already  created,  and  it  was 
therefore  constitutional.  (Syracuse  City  Bank  v.  Davis,  16  Barb.  S.C. 
188.) 

"  The  Constitutions  of  Michigan,  Iowa,  Indiana,  and  Ohio  contain 
similar  limitations  upon  the  mode  of  creating  corporations,  and  the  statutes 
of  those  States,  as  well  as  our  own,  afford  numerous  instances  of  the  grants 
by  special  acts  of  particular  rights,  powers,  and  privileges,  to  corporations 
formed  under  general  laws."  .  .  . 

Cope,  C.J.,  said,  "  As  to  the  power  of  the  legislature  to  grant  the 
franchise  in  question,  I  have  no  doubt ;  but  as  to  the  capacity  of  the  cor- 
poration to  purchase,  the  defendant  is  not  the  party  to  object.  If  the 
corporation,  in  making  the  purchase,  has  acquired  property  which,  under 
the  law  of  its  incorporation,  it  had  no  right  to  acquire,  all  that  can  be 

[15] 


§  9  TELEGRAPH    COMPANIES.  [PART  I. 

franchise ;    and   the   charter   granting   the   exclusive 
franchise  is  to  be  construed  strictly.1 

§  9.  While  it  is  well  settled  that  the  legislature  of 
a  State  cannot  impair  the  obligation  of  a  contract, 
and  that  a  charter  of  incorporation  is  a  contract  be- 
tween the  State  and  the  persons  incorporated ;  yet 
this  doctrine  does  not  interfere  with  the  right  of  emi- 
nent domain,  by  which  the  legislature  may  authorize 
a  subsequently  incorporated  company  to  take  the 
franchises  of  a  company  already  incorporated,  upon 
making  just  compensation.  This  is  now  well  settled. 
A  franchise,  is  no  higher  species  of  property  than  any 
other ;  and  it  is  within  the  competency  of  the  leg- 
said  is,  that  it  has  exceeded  its  powers,  and  may  be  deprived  of  the  prop- 
erty by  a  judgment  of  forfeiture.  This  question  is  one  which  the  State 
alone  can  raise.  A  purchase  by  a  corporation  in  the  face  of  a  positive 
prohibition  would  be  void;  but  that  is  not  this  case.  There  was  no  pro- 
vision of  law  forbidding  the  purchase ;  and  admitting  that  the  corporation 
had  no  power  to  make  it,  the  want  of  power,  in  the  absence  of  express 
prohibition,  is  not  sufficient  to  avoid  it  as  to  third  persons.  The  rule  in 
such  cases  was  laid  down  by  this  Court,  in  Natoma  Water  &  Mining  Co. 
v.  Clarkin,  14  Cal.  544.  In  that  case  the  corporation  was  empowered 
to  purchase  such  property  as  the  purposes  of  the  corporation  should 
require,  and  it  was  objected  that  the  property  in  controversy  was  not  of 
that  description,  and  that  the  corporation  had  no  power  to  purchase  it. 
The  Court  overruled  the  objection,  saying  '  Whether  or  not  the  premises 
in  controversy  are  necessary  for  those  purposes  it  is  not  material  to  in- 
quire ;  that  is  a  matter  between  the  government  and  the  corporation,  and 
it  is  no  concern  of  the  defendant.'  The  reason  of  the  rule  is  obvious. 
As  between  the  parties  the  purchase  is  valid,  and  it  must  be  so  as  to  third 
persons,  until,  by  a  proper  proceeding,  a  forfeiture  has  been  declared.  It 
is  well  settled  that  a  cause  of  forfeiture  cannot  be  inquired  into  collater- 
ally. As  mere  matter  of  opinion,  it  is  proper  for  me  to  state  that  I  regard 
the  purchase  in  this  case  as  valid ;  but  in  any  view  of  the  case,  the  question 
is  an  immaterial  one." 

1  Charles  River  Bridge  v.  Warren   Bridge,  11  Pet.  420;    Tuckahoe 
Canal  Co.  ».  Tuckahoe  R.R.    Co.    11    Leigh,  42;    Chesapeake  &  Ohio 
Canal  Co.  c.  Baltimore  &  Ohio  R.R.  Co.  4  G.  &  Johns.  1. 
[16] 


CHAP.  I.]         THEIR   RELATION    TO   THE    STATE.  §  9 

islature  to  take  all  property  of  every  description, 
whenever  the  public  interests  may  require,  upon  just 
compensation  being  made ;  and  franchises,  in  this 
respect,  stand  exactly  upon  the  same  footing  with  all 
other  property.  Nor  does  it  make  any  difference  that 
the  grant  may  be  exclusive  in  its  character,  and  that 
there  is  an  absolute  prohibition  upon  every  other  in- 
dividual or  company,  constructing  a  line,  or  other 
thing,  that  will  interfere  with  it ;  the  legislature  may 
subsequently  incorporate  another  company,  authoriz- 
ing it  to  take  the  franchises  of  the  first  company, 
upon  making  just  compensation.1 

"  Such  appropriation  is  not  regarded  as  impairing 
the  right  of  property,  or  the  obligation  of  any  con- 
tract ;  on  the  contrary,  it  freely  admits  such  right ; 
and  in  all  just  governments,  provision  is  made  for  an 
adequate  compensation,  which  recognizes  the  owner's 
right."2 

But  the  franchises  of  one  company  could  not  be 
condemned  for  another  company  incorporated  for 
precisely  the  same  public  purpose  ;  this  would  be 
taking  the  property  of  one  company,  and  giving  it  to 
another,  which  does  not  belong  to  the  right  of  emi- 
nent domain ;  and  such  a  law  would  be  oppressive 
and  void.3 

1  Boston  &  Lowell  R.R.  Co.  v.  Salem  &  Lowell  R.R.  Co.  2  Gray,  1  ; 
West  River  Bridge  Co.  v.  Dix,  6  How.  507,  534;  White  River  Turn- 
pike Co.  v.  Vt.  Central  R.R.  Co.  21  Vt.  590  ;  Inhabitants  of  Springfield  v. 
Conn.  River  R.R..  Co.  4  Cush.  63  ;  Rodgers  v.  Bradshaw,  20  Johns.  735  ; 
The  Newcastle  &  Richmond  R.R.  Co.  v.  The  Peru  &  Indianapolis  R.R. 
Co.  3  Ind.  464. 

3  West  River  Bridge  Co.  v.  Dix,  6  How.  U.S.  507,  534. 

s  Boston  Water  Power  Co.  v.  Boston  and  Worcester  R.R.  Corp.  23 
Pick.  393. 

2  [17] 


§   11  TELEGRAPH    COMPANIES.  [PART   I. 

§  10.  It  may  also  be  considered  as  well  settled,  that 
the  legislature  has  power  to  impose  restrictions  or  ad- 
ditional burdens  upon  existing  corporations,  without 
annulling  their  corporate  existence,  and  without  in- 
fringing the  constitutional  inhibition  against  impairing 
the  obligation  of  contracts.  In  Providence  Bank  v. 
Billings  (4  Pet.  514),  Chief- Justice  Marshall  says, 
"The  great  object  of  an  incorporation  is,  to  bestow 
the  character  and  properties  of  individuality  on  a  col- 
lected and  changing  body  of  men.  Any  privileges 
which  may  exempt  it  from  the  burdens  common  to 
individuals  do  not  flow  necessarily  from  the  charter, 
but  must  be  expressed  in  it,  or  they  do  not  exist." ] 

The  power  to  modify,  and  even  repeal,  is  fre- 
quently inserted  in  the  charter,  or  is  contained  in  a 
general  law  existing  at  the  time  of  the  act  of  incor- 
poration ;  and,  in  such  cases,  becomes  a  part  of  the 
contract.  The  legislature  could  not,  however,  in  such 
case,  take  the  private  property  of  the  corporation 
without  compensation.2 

§11.  The  property  of  a  telegraph  company,  like 
that  of  an  individual,  is  subject  to  taxation  by  the 
State.3 


1  See  the  whole  subject  discussed  in  Thorpe  v.  Rutland  &  Burlington 
R.R.  Co.  27  Vt.  140. 

2  Miller  v.  N.Y.  &  Erie  R.R.  Co.  21  Barb.  513;   Pacific  R.R.  Co.  v. 
Renshaw,  18  Misso.  210-216;  White  v.  Syracuse  &  Ulica  R.R.  Co.  14 
Barb.  560. 

8  Regina  v.  Inhabitants  of  Denton,  14  Eng.  Law  &  Eq.  124;  Illi- 
nois Central  R.R.  Co.  ».  The  County  of  McLean,  and  others,  17  111.  291 ; 
Louisville  &  Portland  Canal  Co.  v.  Commonwealth,  7  B.  Monroe  (Ky.), 
160 ;  Elec.  Teleg.  Co.  v.  Overseers,  &c.,  of  Salford,  24  Law  J.  (N.S.) 
Magistrates'  Cases,  146. 

The  question  in  the  last  case  was  upon  the  ratability  of  the  Electric  Tele- 
[18] 


CHAP.   I.]         THEIR    RELATION    TO    THE    STATE.  §   11 

The  capital  stock  of  a  corporation  may  be  taxed,  or 
the  individual  owner  of  stock  in  the  company  is  lia- 
ble to  be  taxed  on  his  stock.  The  capital  stock  of 
the  corporation  may  be  taxed,  as  an  aggregate  to  the 


graph,  under  the  43  Eliz.  c.  2 :  this  statute  enacts  that  "  occupiers  of 
land,  houses,  tithes  itnpropriate,  propriation  of  tithes,  coal  mines,  or  salable 
underwood,"  are  to  be  taxed  to  the  relief  of  the  poor.  This  company,  in- 
corporated by  act  of  Parliament,  constructed,  with  the  consent  of  a  railway 
company,  posts,  wires,  and  apparatus,  along  the  line  of  railway ;  and,  in 
consideration  of  the  privilege  of  locating  them  on  the  lands  of  the  railway 
company,  the  telegraph  company  worked  two  of  the  wires  for  the  exclu- 
sive benefit  of  the  railway  company.  The  posts  upon  which  the  wires 
rested  were  fixed  in  the  ground,  but  were  subject  to  removal  at  the  option 
of  the  railway  company,  if  found  inconvenient,  to  some  unobjectionable 
spot.  The  authorities  upon  the  construction  of  this  statute  had  been  uni- 
form to  the  effect  that  it  did  not  apply  to  a  mere  tenement  or  easement. 
It  was  held,  however,  that  this  telegraph  company  was  liable  to  be  rated 
to  the  relief  of  the  poor,  in  respect  of  the  wires,  posts,  and  land  on  which 
the  same  was  fixed. 

Pollock,  C.B. :  "  The  only  question  before  us  is,  whether  the  Electric 
Telegraph  Company  are  liable  to  be  rated  to  the  relief  of  the  poor  in  re- 
spects of  their  posts  and  wires.  I  am  of  opinion  that  they  are  liable.  It  is 
conceded  that,  if  the  electric  wires  were  carried  underground,  the  com- 
pany would  be  liable  to  be  rated.  So,  if,  instead  of  passing  under  the 
earth,  the  wires  passed  under  water,  would  they  be  liable  ?  To  this 
the  same  answer  must  be  returned  —  they  are  liable.  The  passage  read 
by  my  brother  Martin  from  4  Burn's  Just.  190,  is  decisive  of  the 
point ;  and  it  shows  that  there  is  no  distinction  between  a  possession  ob- 
tained by  passing  things  from  fixed  points  in  space  and  air,  and  in  passing 
them  under  earth  and  water.  The  land  is  equally  occupied  in  all  these 
cases,  because  the  estate  in  it  extends  indefinitely  upwards  and  down- 
wards, and  consequently,  whether  the  wires  pass  up  or  down,  the  proprie- 
tors of  them  exclusively  occupy  a  certain  portion  of  space  over  which 
they  have  complete  control,  and  may  exclude  every  one  else  from  it. 
Now,  that  is  the  case  here,  with  the  sole  difference,  that  if  the  places 
whereon  the  posts  supporting  the  wires  are  fixed  are  found  inconvenient, 
they  may  be  removed  on  an  intimation  to  that  effect  given  to  the  Electric 
Telegraph  Company  by  the  railway  company.  No  point  can  be  made  of 
that  circumstance  in  favor  of  exemption  from  rating.  That  the  company 
are  ratable  therefore  appears  to  me  free  from  doubt.  .  .  . 

"  But  here  it  appears  to  me  that  the  Electric  Telegraph  Company 

[19] 


§   11  TELEGRAPH    COMPANIES.  [PART  I. 

corporation,  or  to  the  stockholders  on  account  of 
their  separate  ownership  of  it ;  but,  it  seems,  cannot 
be  taxed  at  the  same  time  in  both  modes.1 

Where  the  telegraph  company  owns  the  ground 
upon  which  its  offices  and  other  necessary  buildings 
or  apparatus  are  located,  of  course  it  would  be  liable 

have  an  exclusive  right  to  the  soil  where  these  posts  and  wires  are,  so  long 
as  the  railway  company  does  not  desire  them  to  remove  the  posts  to 
another  spot." 

Platt,  B.,  said,  "  The  case  is  assimilated  to  that  of  an  easement,  but 
when  the  matter  comes  to  be  examined,  the  difference  is  manifest. 
If  this  were  an  easement,  the  case  would  be  like  that  I  threw  out  in 
the  argument ;  namely,  of  a  man  having  the  right  to  pass  over  a  wet 
meadow  where  bricks  are  placed  to  keep  people's  feet  out  of  the  water. 
He  only  occupies  the  space  there  so  long  as  his  passage  is  concerned,  and" 
if  the  Electric  Telegraph  Company  here  were  identified  with  the  messages 
they  send,  the  argument  would  be  well  founded.  But  the  wires  remain, 
like  an  arch  or  a  bridge  over  a  field.  The  case  of  a  bridge  comes  very 
near  the  present,  for  we  may  look  upon  the  posts  as  the  abutments  of  the 
bridge,  and  the  wires  as  houses  on  the  abutments,  and  therefore  ratable  as 
much  as  a  house  on  the  centre  arch  of  that  bridge,  even  though  at  a  dis- 
tance from  the  abutment.  Then  it  was  suggested,  that,  if  posts  were  so  fast- 
ened that  they  could  be  removed,  they  would  not  be  ratable,  and  that  here 
they  might  be  removed  at  the  will  of  the  railway  company.  But  that  does 
not  appear  to  me  to  make  any  difference ;  for  still  there  would  be  occupa- 
tion by  consent  of  the  company ;  for  I  may  let  a  field  to  a  man  for  various 
purposes ;  e.g.  a  stand  for  carriages,  deposit  for  goods,  &c.,  and  surely  the 
restriction  I  impose  does  not  make  him  less  a  tenant ;  for  though  he  holds 
under  a  qualified  tenancy,  he  is  not  the  less  a  tenant,  and  if  so,  is  ratable- 
So  here,  the  Electric  Telegraph  Co.  have  an  occupation,  with  the  consent 
of  the  railway  company,  by  fixing  posts  in  the  earth,  and  attaching  to  them 
wires  passing  from  post  to  post ;  and  the  railway  company  having  the  liberty 
of  removing  these  posts,  is  precisely  like  the  case  of  the  field." 

1  Bank  Cape  Fear  v.  Edwards,  5  N.  C.  (Iredell,  Law),  516  ;  Gordon's 
Executors  v.  Mayor  of  Baltimore,  5  Gill,  231. 

But  where  the  charter  authorizes  the  company  to  hold  real  estate, 
and  provides  that  the  capital  stock  shall  be  divided  into  shares  to  be  held 
as  personal  estate,  it  has  been  held,  that  such  real  estate  was  not  subject  to 
taxation,  except  as  personal  estate,  and  that  as  each  shareholder  was 
taxed,  the  company  could  not  be.  Bangor  &  Piseataquis  R.R.  Co.  v.  Har- 
ris, 21  Me.  533. 
[20  ] 


CHAP.  I.]        THEIR   RELATION    TO    THE    STATE.  §  12 

to  taxation  in  the  same  way  as  the  property  of  an 
individual. 

The  income  of  a  telegraph  company  is  taxed  under 
the  revenue  laws  of  the  United  States.1 

§  12.  The  legislature  has  the  power  to  exempt  the 
company  from  taxation : 2  this  may  be  either  ex- 
pressly provided  in  the  charter,  or  it  may  be  by  a 
general  law  relating  to  all  companies  authorized  to 
construct  and  operate  lines,  upon  complying  with  the 
conditions  prescribed  in  such  general  law.3 

When  such  exemption  is  granted,  it  becomes  a 
contract  between  the  State  and  the  company,  which 
the  legislature  cannot  impair  by  the  subsequent  im- 
position of  a  tax;4  but  if  the  clause  exempting  the 
corporation  from  taxation  will  bear  the  construction 
that  it  is  a  temporary  exemption  only,  then  a  subse- 
quent tax  may  be  imposed.3  An  exemption  from 
taxation  is  not  to  be  presumed ;  and  when  it  is 
granted,  it  must  be  by  clear  and  express  terms.6 

1  See  Appendix,  D. 

2  The  State  of  New  Jersey  v.  Wilson,  7   Cranch,  164 ;  The   Piqua 
Branch  of  the   State  Bank  of  Ohio  v.  Jacob  Knoop,  Treasurer,  &c.  16 
How.  U.S.  369  ;  Oliver  &  Williams  v.  Robert  Piatt,  3  How.  U.S.  333 ; 
Angell   &  Ames  on   Corp.  §§  472-476.     But  such  exemption  in  charter 
would  not  control  the  right  of  another  State,  through  which  the  lines 
passed  by  its  consent,  to  impose  tax.     Angell  &  Ames  on  Corp.  §  486  a. 

3  The  legislature  may  surrender  the  power  of  taxation  in  respect  to 
particular  lands,  but  such  surrender  is  not  to  be  presumed.     McCallie  v. 
The  Mayor  &  Aid.  of  Chattanooga,  3  Head,  317. 

4  The  State  of  New  Jersey  v.  Wilson,  7  Cranch,  164 ;  McCallie  v. 
Mayor  &  Aid.  of   Chattanooga,  3    Head,  317;    Woolsey  v.    Dodge,   6 
McLean,  142. 

5  Ohio  Trust  Co.  v.  Debolt,  16  How.  U.S.  416;  Commonwealth  v. 
The  Easton  Bank,  10  Pa.  St.  442. 

8  The  Providence  Bank  v.  Billings  &  Pitman,  4  Pet.  514;  The 
Philadelphia  &  Wilmington  R.R.  Co.  ».  The  State  of  Maryland,  10 
How.  U.S.  376. 

[21] 


§  13  TELEGRAPH    COMPANIES.  [PART  I. 

§  13.  When  a  telegraph  company  fails  to  perform 
a  duty  imposed  upon  it  by  law,  it  may  be  compelled 
to  do  so  by  mandamus.  In  case  of  usurpation,  non- 
user,  or  abuse  of  franchise,  the  company  may  be  pro- 
ceeded against  by  information  in  the  nature  of  a  quo 
warranto,  or  scire  facias,  and  in  some  States  by  bill 
in  equity  under  statutory  provision. 

Telegraph  companies,  like  other  corporations,  are 
liable  to  indictment  at  common  law. 

The  subject  of  their  liability  to  indictment  by 
statute  will  be  considered  in  a  subsequent  chapter. 

A  corporation  is  indictable  for  non-feasance  or 
misfeasance,  when  it  becomes  a  nuisance.1 

It  was  held  in  the  case  of  Rex  v.  The  United  King- 
dom Telegraph  Company,2  that  a  telegraph  company 

1  London  &  Brighton  R.R.  v.  Blake,  2  Railway  (Eng.)  Cases,  322. 

!  Rex  v.  United  Kingdom  Teleg.  Co.  9  Cox,  C.C.  137.  The  United 
Kingdom  Telegraph  Company  obtained  a  provisional  registration  in 
1861.  In  1850,  a  company,  bearing  the  same  title,  was  formed  under 
the  existing  law  applicable  to  joint-stock  companies,  and  an  act  of  Par- 
liament was  obtained  (14  &  15  Viet.  c.  107,9a  private  act).  Sec.  15 
of  that  act  gave  power  to  lay  down,  under,  along,  or  across  a  street, 
wires,  &c.,  for  the  purpose  of  electric  telegraph  communication ;  but  all 
this  was  conditional,  upon  the  company,  which  was  provisionally  registered, 
being  completely  registered.  Never  having  been  completely  registered, 
this  company  of  1850  became  defunct,  as  far  as  being  able  to  avail  them- 
selves of  the  present  Joint-Stock  Company's  Act  (19  &  20  Viet.)  was  con- 
cerned ;  but  the  company  that  was  provisionally  registered  in  July,  1861, 
took  upon  themselves  the  title  of  the  company  of  1850,  adding  the  word 
"  limited,"  and  advertised  themselves  as  in  possession  of  the  powers  of  the 
company  of  1850.  Applications  to  Parliament  were  made,  and  were 
unsuccessful ;  but  the  company,  notwithstanding  this  ill  success,  assuming 
parliamentary  rights,  proceeded  with  their  work,  and  erected  lines  of 
wire  and  posts  in  various  counties.  Proceedings  in  chancery  were  insti- 
tuted, and  were  stayed,  in  order  that  the  right  of  the  company  to  do  what 
they  were  doing  should  be  determined  at  law. 

Martin,  B.,  to  the  jury:  "There  has  been  a  long  examination,  and  a 
long  cross-examination ;  and  the  cross-examination  was  directed  to  whether 
[22] 


CHAP.  I.]        THEIR    RELATION    TO   THE    STATE.  §   13 

may  be  indicted  for  putting  up  its  posts  upon  the 
highway  so  as  to  obstruct  the  public  in  its  use. 

the  posts  were,  or  were  not,  erected  upon  what  was  called  a  formed  foot- 
path, which  was  understood  to  be  the  artificial  footpath  you  see  upon 
roads.  Now  I  tell  you,  First,  In  the  case  of  an  ordinary  highway, 
although  it  may  be  of  varying  and  unequal  width,  running  between 
fences,  one  on  each  side,  the  right  of  passage  or  way  prima  facie,  and 
unless  there  be  evidence  to  the  contrary,  extends  to  the  whole  space 
between  the  fences,  and  the  public  are  entitled  to  the  use  of  the  entire 
of  it  as  a  highway,  and  are  not  confined  to  the  part  which  may  be  metalled 
or  kept  in  repair  for  the  more  convenient  use  of  carriages  or  foot-pas- 
sengers. 

"  Secondly,  That  a  permanent  obstruction  erected  on  a  highway,  and 
placed  there  without  lawful  authority,  which  renders  the  way  less  com- 
modious than  before  to  the  public,  is  an  unlawful  act,  and  a  public  nui- 
sance at  common  law,  and  that  if  the  jury  believed  that  the  defendants 
placed,  for  the  purpose  of  profit  to  themselves,  posts,  with  the  object  and 
intention  of  keeping  them  permanently  there  in  order  to  make  a  tele- 
graphic communication  between  distant  places,  and  did  permanently  keep 
them  there,  and  the  posts  were  of  such  size  and  dimensions  and  solidity, 
as  to  obstruct  and  prevent  the  passage  of  carriages  and  horses,  or  foot- 
passengers,  upon  the  part  of  the  highway  where  they  stood,  the  jury 
ought  to  find  the  defendants  guilty  upon  the  indictment,  and  that  the 
circumstance  that  the  posts  were  not  placed  upon  the  hard  or  metallic  part 
of  the  highway,  or  upon  the  footpath  artificially  formed  upon  it,  or  that  the 
jury  might  think  that  sufficient  space  for  the  public  traffic  remained,  are  im- 
material circumstances  as  regards  the  legal  right,  and  do  not  affect  the 
right  of  the  Crown  to  the  verdict." 

The  reporter  makes  this  note :  The  posts  in  question  were,  in  all 
cases,  erected  with  the  assent  of  the  authorities,  who  were  the  guardians 
of  the  highway,  and  though  some  were  erected  on  the  highway,  the 
majority  were  on  the  side  of  the  highway  and,  in  some  instances,  on  spots 
where  the  sides  were  so  rough  as  to  be  practically  impassable. 

A  full  statement  of  the  case  may  be  found  at  page  1 74  of  "  Cox's 
Criminal  Cases,"  where  it  will  be  found  that  the  charge  to  the  jury,  above 
set  forth,  was  sustained  by  the  Court  of  Queen's  Bench. 

If  the  assent  of  the  proper  authorities  had  been  obtained  for  erecting 
the  posts,  it  may  well  be  questioned  whether  the  indictment  would  be  sus- 
tained in  this  country.  A  district  court  in  Philadelphia,  in  a  case  cited  as 
Telegraph  Co.  v.  Wilt  (11  Am.  Law  Journal,  374),  went  nearly  to  this 
length ;  but  we  have  noted  its  severity  against  the  company,  which  had 
vested  rights  under  its  charter.  Post,  §  53,  first  note. 

[23] 


§13  TELEGRAPH    COMPANIES.  [PART   I. 

An  indictment  was  found  against  the  company,  for 
placing  its  posts  upon  the  highway  so  as  to  obstruct 
its  use  by  the  public.  The  company  having  been  con- 
victed, upon  a  motion  for  a  new  trial,  the  Court  of 
Queen's  Bench  laid  down  the  following  propositions : 

That  in  case  of  «,n  ordinary  highway  running  be- 
tween fences,  one  on  each  side,  the  right  of  .passage 
extends  to  the  entire  space  between  the  fences;  and 
the  public  are  entitled  to  the  use  of  the  whole  of  it  as 
a  highway,  and  are  not  confined  to  the  part  of  it 
which  may  be  kept  in  order  for  the  more  convenient 
use  of  carriages  and  foot-passengers. 

That  a  permanent  obstruction  erected  on  a  high- 
way, placed  there  without  lawful  authority,  and 
which  renders  the  way  less  commodious  than  it  was 
before,  is  an  unlawful  act,  and  a  public  nuisance  at 
common  law;  and  that  if  this  telegraph  company 
placed  permanent  posts  on  the  highway,  of  such  a 
character  as  to  obstruct  the  passage  of  the  public,  it 
is  guilty,  although  the  posts  were  not  placed  upon  the 
highway  on  the  hard  part  of  the  road,  and  although 
sufficient  space  for  the  public  travel  remained. 


[24] 


CHAP.  II.]  ORGANIZATION.  §   15 


CHAPTER    II. 

ORGANIZATION. 

§  14.  WHENEVER  a  company  operates  its  line  under 
a  special  act  of  incorporation,  the  mode  of  organiza- 
tion directed  by  the  charter  must  be  pursued ;  and, 
when  under  a  general  statute,  applicable  alike  to  all 
telegraph  companies  and  other  corporations,  the 
mode  required  by  such  general  law  must  be  adopted. 

§  15.  The  mode  of  organization  of  telegraph  com- 
panies, in  most  of  the  American  States,  and  also  in 
Canada,  is  provided  by  a  general  law  applicable  alike 
to  all  corporations,  including  telegraph  companies. 
The  particular  provisions  in  the  different  States,  regu- 
lating the  organization  t>f  telegraph  companies,  will 
be  found  in  the  Appendix  to  this  volume. 

In  several  of  the  States  it  is  provided,  that  any  num- 
ber of  persons  may  associate  themselves  for  the  pur- 
pose of  constructing  and  operating  lines  of  telegraph, 
by  making  a  certificate  under  their  hands  and  seals, 
showing  the  name  adopted  by  the  association,  by 
which  it  is  to  sue  and  be  sued,  and  which  is  to  be  the 
name  used  by  it  in  its  business ;  the  general  route  of 
its  line  ;  its  capital  stock  ;  the  number  of  shares  into 
which  it  is  divided ;  the  names  and  places  of  resi- 
dence of  the  shareholders,  and  the  number  of  shares 

[25] 


§   15  ORGANIZATION.  [PART  I. 

held  by  each ;  the  periods  at  which  the  association 
shall  commence  and  terminate :  this  certificate  to  be 
acknowledged  and  recorded,  and  a  copy  filed  in  the 
office  of  the  Secretary  of  State ;  and  that,  upon  com- 
pliance with  these  conditions,  the  association  shall 
become  a  body  corporate. 

Provision  is  also  made  for  an  increase  of  capital 
stock,  and  of  the  number  of  shareholders ;  and,  in 
some  of  the  States,  for  consolidation  of  companies. 
Such  are  the  general  features  of  the  Statutes  of  New 
York,  Ohio,  Maryland,  Virginia,  Wisconsin,  Michi- 
gan, and  California,  except  as  to  the  consolidation  of 
companies,  which  is  only  provided  for  specially  in 
New  York  and  Ohio. 

In  some  States,  also,  special  provision  is  made  for 
the  meeting  of  stockholders ;  the  election  and  qualifi- 
cation of  officers  ;  the  mode  of  subscription  for  stock  ; 
the  manner  of  voting,  and  the  qualification  of  voters ; 
the  mode  of  assessments,  and  of  selling  shares  for 
non-payment  of  stock,  etc.1 

These  general  laws  supersede  the  necessity  of  a 
special  charter.  In  those  States  where  the  laws  are 
more  general,  if  a  charter  should  be  necessary,  its 
provisions  need  contain  little  more  than  the  names  of 
the  corporators  ;  the  termini  and  general  route  of  the 
line ;  the  amount  of  the  capital  stock ;  and  the  time 
within  which  the  line  should  be  constructed,  or, 
perhaps,  the  organization  be  completed.  In  many  of 
the  States  these  general  laws  are  of  such  a  character 
that  telegraph  companies  can  be  organized  without 

1  Statutes  of  New  Jersey,  Wisconsin,  Ohio,  and  Virginia.     See  Ap- 
pendix Z,  CC,  KK,  LL. 
[26] 


CHAP.  II.]  ORGANIZATION.  §   17 

applying  to  the  legislature  for  a  charter ;  although 
there  are  many  companies  that  have  not  availed  them5 
selves  of  the  provisions  of  these  general  laws,  but  have 
obtained  special  acts  of  incorporation. 

It  is  not  intended  here  to  make  more  than  a  very 
general  reference  to  the  rules  of  law  governing  the 
organization  of  telegraph  companies,  as  drawn  from 
analogous  cases ;  as  a  more  detailed  presentation  of 
the  law  relating  to  the  organization  and  powers  of 
incorporated  companies  would  be  but  a  repetition 
of  what  has  been  already  collected  and  presented  in 
works  more  especially  devoted  to  this  subject.1 

§  16.  As  a  general  thing,  the  route  of  the  com- 
pany's line,  the  mode  of  acceptance  of  the  charter, 
the  subscription  and  distribution  of  stock,  the  election 
and  qualification  of  directors,  the  amount  of  stock  to 
be  paid  in,  and  the  general  provisions  in  relation  to 
the  necessary  steps  to  be  taken  to  complete  the  organ- 
ization, are  conditions  precedent,  and  must  be  strictly 
complied  with. 

Such  acts  as  the  charter  contemplates  being  per- 
formed after  the  organization  has  been  completed  are 
conditions  subsequent ;  and  a  failure  to  comply  with 
them  does  not  work  a  forfeiture  of  the  charter,  but 
gives  the  individual  injured  thereby  a  right  of  action 
against  the  company.2 

|  17.  If  the  charter  prescribe  an  exclusive  mode  of 
becoming  a  stockholder,  either  by  express  provision, 
or  by  fair  construction,  a  person  does  not  subject 

1  See  Angell  &  Ames  on  Corporations,  §  111,  et  seq.;  and  the  excellent 
treatise  of  C.J.  Redfield  on  Railways,  vol.  i.  §  18,  subd.  1. 

2  2  Kent,  Com.  305,  &  notes;  1  Redfield  on  Railways,  §  18,  subd.  5. 

[27] 


§  18  ORGANIZATION.  [PART  I. 

himself  to  the  liabilities,  nor  entitle  himself  to  the 
privileges,  of  a  shareholder,  unless  he  follow  the 
designated  mode.1 

A  promise  to  take  shares,  if  made  after  acceptance 
of  charter,  but  before  organization  under  it,  would,  it 
is  believed,  be  binding.2  Any  subsequent  ratification 
after  organization  would,  of  course,  make  the  promise 
binding.3 

In  determining  the  liability  for  stock  in  any  partic- 
ular case,  it  will  be  necessary  to  examine  the  provi- 
sions of  the  act  of  incorporation ;  and  whatever 
conditions  precedent  to  the  personal  liability  of  the 
stockholder  are  imposed  by  the  charter,  must  be  com- 
plied with,  before  his  liability  is  fixed.4 

§  18.  When  stock  is  subscribed,  a  contract  is  there- 
by created  between  the  company  and  the  stockholder ; 

1  Troy  &  Boston  R.R.  Co.  v.  Tibbits,  18  Barb.  297;  Troy  &  Boston 
R.R.  Co.  v.  Warren,  ib.  310. 

*  Gleaves  v.  Brick  Church  Turnpike  Co.  1  Sneed,  491 ;  Hamilton  & 
Deansville  Plank  Road  Co.  v.  Rice,  7  Barb.  157;  Covington  Plank  Road 
Co.  v.  Moore,  3  Ind.  510. 

*  Kennebec  &  Portland  R.R.  Co.  v.  Palmer,  34  Maine,  366. 

Where  an  association  enter  into  stipulations  in  the  form  of  a  tripartite 
indenture,  one  party  to  furnish  the  capital,  one  to  build  a  line  of  tele- 
graph, and  the  other  to  convey  the  patent  to  be  used  by  the  line,  and 
all  of  the  parties  own  stock  in  the  company,  and  it  is  further  agreed  that 
an  act  of  incorporation  shall  be  obtained,  and  all  rights  growing  out  of  the 
association  shall  vest  in  the  corporation,  and  an  act  of  incorporation  is  ob- 
tained, wherein  it  is  provided  that  the  corporation  shall  be  invested  with 
all  rights  and  interests  of  the  association,  —  it  would  seem  that  such  corpo- 
ration can  maintain  an  action  against  all  of  the  parties  to  such  associa- 
tion upon  contracts  existing  before  the  act  of  incorporation,  and  even 
when  the  defendant  was  a  member  of  the  association  in  more  than  one 
part,  so  that  no  action  at  law  could  have  been  maintained  upon  the  orig- 
inal action.  Troy  &  Canada  Teleg.  Co.  v.  Connell,  17  Law  Rep.  591. 

4  Irvine  and  others,  Trustees  of  the  Alleghany  &  Erie  Teleg.  Co.  u. 
Forbes,  11  Barb.  S.C.  587. 
[28] 


CHAP.  II.]  ORGANIZATION.  §  19 

and  any  subsequent  alteration  of  the  charter  by 
legislative  enactment  which  will  have  the  effect  of 
impairing  the  obligation  of  the  contract  between  him 
and  the  company,  if  such  amendment  of  the  charter 
were  accepted  by  the  company,  would  release  him 
from  liability  for  the  stock  already  subscribed.  He 
would  have  the  right,  however,  if  he  chose  so  to  do, 
to  seek  the  interposition  of  a  Court  of  Equity,  to 
restrain  the  company  from  appropriating  the  funds 
already  subscribed  before  the  alteration  or  amendment 
to  the  new  purpose  or  enterprise  contemplated  by 
the  amendment.  The  legislature,  however,  could 
authorize  modifications  of  the  enterprise,  so  that  the 
general  purpose  and  object  of  the  charter  were  not 
encroached  upon.  The  cases  on  this  subject  discuss- 
ing the  extent  to  which  such  modifications  are  author- 
ized, will  be  found  referred  to  in  the  note.1 

§  19.  Municipal  corporations  have  the  power  to 
take  stock  in  telegraph  companies,  when  so  author- 
ized by  the  legislature  ;  and  when  so  authorized,  may 
raise  money  for  this  purpose  by  the  issuance  of  bonds 
or  the  levying  of  a  tax. 

This  would  be  so,  we  should  say,  in  analogy  to  the 
rule  in  cases  of  railroads ; 2  for  telegraphs,  equally 
with  railways,  are  public  improvements,  designed  and 

1  Middlesex  Turnpike  Co.  ».  Locke,  8  Mass.  268 ;  Proprietors  of  the 
Union  Locks  and  Canals  v.  Towne,  1  N.H.  44 ;  Hartford  &  New  Haven 
R.R.  Co.  v.  Croswell,  5  Hill,  383 ;  Penn.  &  Ohio  Canal  Co.  v.  Webb,  9 
Ohio  (Hammond),  136  ;  Clark  v.  Mouongahela  Nav.  Co.  10  Watts,  364  ; 
London  &  Brighton  R.R.  Co.  v.  Wilson,  6  Bing.  N.C.  135. 

2  C.  W.  &  Z.  R.R.  Co.   0.  Corn's  of  Clinton  County,  1    Ohio  St. 
77;    Slack  &  Co.  ».  Maysville  &  Lexington  R.R.  Co.  13  B.  Monroe,  22  ; 
Louisville  &  Nashville  R.R.  Co.  v.   The   County  Court  of  Davidson,  1 
Sneed,  637. 

[29] 


§  20  ORGANIZATION.  [PART   I. 

calculated  to  promote  the  general  convenience  and 
public  good. 

§  20.  The  requirements  of  the  charter  in  respect 
of  the  directors  must  be  strictly  followed.  As  a  gen- 
eral rule,  when  the  charter  provides  for  a  board  of 
directors,  they  have  the  power  to  act  for  the  corpora- 
tion to  the  full  extent  that  the  company  is  empowered 
to  act  under  its  charter,  and  are  only  restricted  by  the 
charter  itself,  and  the  by-laws  of  the  corporation ; 
and  contracts  made  in  behalf  of  the  company  with 
third  persons,  and  for  purposes  within  the  scope  of 
the  business  of  the  company,  although  not  made  in 
the  mode  prescribed,  if  acted  upon  and  recognized  by 
the  officers  of  the  company,  have  been  held  binding 
upon  it.1  As  where,  by  the  deed 'of  settlement,  the 
directors  were  to  manage  the  business  of  the  company, 
but  all  contracts  above  a  certain  value  were  to  be 
signed  by  at  least  three  individual  directors,  or  sealed 
with  the  seal  of  the  company,  under  the  authority  of 
a  special  meeting.  Plaintiff  sued  the  company  on  an 
agreement  above  the  prescribed  value,  and  it  was 
recognized  in  correspondence  by  the  secretary,  and 
plaintiff  received  payments  from  time  to  time  in 
checks  for  services  performed  under  this  agreement, 
and  which  were  entered  up  in  the  accounts  of  the 
company,  and  were  allowed ;  but  the  contract  had 

1  Whitwell,  Bond,  et  al.  v.  Warner,  20  Vt.  425 ;  Hoare's  Case,  in 
re  Electric  Telegraph  Co.  of  Ireland,  30  Beav.  225 ;  Troup's  Case,  in  re 
Elec.  Tcleg.  Co.  of  Ireland,  29  Beav.  353;  Bunn's  Case,  6  Jur.  1225 
(Chancery). 

It  has  been  held,  that,  although  directors  meet  outside  of  the  limits  of  the 
State,  their  proceedings  will  be  binding  upon  the  corporation.     Ohio  & 
Miss.  R.R.  Co.  v.  McPherson,  4  Am.  Law  Register,  562. 
[30] 


CHAP.  II.l  ORGANIZATION.  &  21 

-J  O 

never  been  signed  by  the  three  directors,  nor  was  it 
under  the  seal  of  the  company.  The  contract  was 
held  binding  upon  the  company.1 

§  21.  If,  however,  the  directors  should  presume  to 
act  beyond  the  proper  scope  of  their  agency,  and  to 
direct  the  funds  of  the  corporation  into  new  enter- 
prises, or  to  different  purposes  from  those  contem- 


1  Reuter  v.  The  Electric  Telegraph  Co.  6  Ellis  &  Blackburn,  Q.B.,  88 
Eng.  Com.  Law,  341. 

Lord  Campbell,  C.J.,  said  that  the  objection  was  made  that  "  at  all 
events,  according  to  the  deed  of  settlement,  the  contract  ought  to  have 
been  '  signed  by  at  least  three  individual  directors.'  We  do  not  think  it 
necessary  to  decide  whether  the  consideration-money  here  must  be  taken 
to  exceed  £50,  for,  assuming  that  the  contract  was  originally  ultra  vires  of 
the  chairman,  we  think  that  it  has  been  adopted  and  ratified  by  the  com- 
pany so  as  to  render  them  liable  upon  it.  We  must  first  observe,  that  this 
contract,  which  was  entered  into  on  the  12th  of  January,  1854,  does  not 
appear  to  us  to  be  at  variance,  or  at  all  inconsistent  with  the  prior  agree- 
ment of  14  September,  1853.  .  .  .  Alight  not  the  contract  entered 
into  by  the  chairman,  although  originally  without  authority,  and  not  bind- 
ing, be  ratified  by  the  company  ?  The  deed  of  settlement  declares  that 
'  the  directors  shall  conduct  and  manage  the  affairs  of  the  company,  and 
shall  exercise  all  the  powers  which  may  be  exercised  by  the  company  at 
large.'  Then  the  documents  set  out  in  the  supplemental  case  afford  abun- 
dant evidence  that  the  directors  were  made  acquainted  with  the  new  con- 
tract, approved  of  it,  and  acted  upon  it.  The  entry  in  the  minute-book 
by  the  chairman  was  for  their  information,  and  we,  having  power  to  draw 
inferences  from  the  evidence,  do  infer  that  they  saw  it,  and  sanctioned  it. 
The  plaintiff  acted  under  it  for  many  months ;  during  this  period  the  cor- 
respondence respecting  it  with  the  secretary,  the  proper  functionary  of  the 
company  for  carrying  on  such  correspondence,  &c.,  and  he  took  credit  by 
checks  which  the  directors  must  have  drawn.  We  are  bound  to  suppose 
that  the  directors,  before  they  drew  the  checks,  examined  the  accounts, 
and  approved  of  what  the  plaintiff  had  done." 

See  also  Troup's  Case,  in  re  The  Elec.  Teleg.  Co.  of  Ireland,  29 
Beav.  353  (Chancery),  —  that  a  person  lending  money  to  the  directors, 
where  they  have  no  power  to  borrow  money,  can  enforce  payment  of  it 
against  the  company,  if  it  has  been  bona  fide  applied  to  the  purposes  of 
the  company.  Hoare's  Case,  in  re  Elec.  Teleg.  Co.  of  Ireland,  30  Beav. 
225  (Chancery). 

[31] 


§  22  ORGANIZATION.  [PART   I. 

plated  by  the  charter,  any  stockholder  might  restrain 
them  in  equity.1 

The  right  of  a  majority  of  the  directors  to  control 
the  minority  would  exist  in  all  cases  of  acts  to  be 
performed  within  the  legitimate  scope  of  the  organic 
law ;  and  this  would  be  so,  whether  such  provision 
as  to  the  control  of  a  majority  is  to  be  found  in  the 
charter  or  not :  it  would  be  implied.2 

But  where  the  organization  has  not  been  com- 
pleted, and  the  company  remains  but  a  private  as- 
sociation of  individuals,  the  majority  cannot  bind  the 
minority,  unless  by  special  agreement.3 

§  22.  The  provisions  by  statute  in  reference  to  the 
organization  of  telegraph  companies  in  England, 
Canada,  and  the  different  American  States,  will  be 
found  in  the  Appendix. 

1  Coleman  v.  The  Eastern  Counties  R.R.  Co.  4  Railway  Cases,  513  ; 
•where  the  subject  is  elaborately  discussed  by  Lord  Langdale. 

2  The  King  v.  Whitaker,  9  B.  &  C.  648 ;  Field  v.  Field,  9  Wend.  394. 
By  the  Code  of  Tennessee,  sec.  1478,  a  majority  is  sufficient  to  act,  when- 
ever any  corporate  powers  are  directed  to  be  exercised  by  any  particular 
body  or  number  of   persons. 

*  Irvine  and  others,  Trustees  of  the  Alleghany  &  Erie  Teleg.  Co.  w. 
Forbes,  11  Barb.  S.C.  587;  Livingston  ».  Lynch,  4  Johns.  Ch.  573. 
Under  7  &  8  Viet.  c.  110,  the  -Joint-Stock  Company's  Registration  Act ;  16 
&  17  Viet.  c.  123;  9  &  10  Viet.  c.  44,  "An  act  for  incorporating  and 
regulating  the  Elec.  Teleg.  Co.  of  Ireland ;"  and  the  1*1  &  12  Viet.  c.  45,  the 
Winding-up  Act,  —  there  have  been  a  number  of  decisions  with  reference 
to  taking  shares;  the  transfer  of  shares;  what  constitutes  a  party  a  con- 
tributory, &c.,  in  cases  of  telegraph  companies  organized  under  these  acts. 
But  they  are  of  such  a  local  character  that  only  a  citation  of  the  cases  need 
be  given  here.  Rudd's  Case,  in  re  Elec.  Teleg.  Co.  of  Ireland,  80  Beav. 
143 ;  Reid's  Case,  in  re  Elec.  Teleg.  Co.  of  Ireland,  24  Beav.  318 ;  Max- 
well's Case,  24  Beav.  321 ;  Cockney's  Case,  26  Beav.  6 ;  s.c.  28  Law  J. 
12  ;  Bunn's  Case,  6  Jur.  N.S.  1175;  Elec.  Teleg.  Co.  of  Ireland  v.  Bunn, 
6  Jur.  1225  (Chancery). 


[32] 


CHAP.  III.]      PURCHASE    AND    CONDEMNATION.  §  23 


CHAPTER  IH. 

RIGHT    OF    WAY    BY   PURCHASE    AND    CONDEMNATION. 

§  23.  MOST  of  the  telegraph  lines  which  are  oper- 
ated in  the  United  States,  Canada,  and  Great  Britain, 
and  probably  also  in  other  countries,  are  along  public 
roads  and  highways,  either  upon  or  under  them,  or 
along  the  line  of  railroads;  and  but  few  cases  are 
likely  to  come  before  the  courts,  between  private  per- 
sons and  telegraph  companies,  in  relation  to  the 
appropriation  of  lands,  either  by  purchase  or  con- 
demnation, for  the  purpose  of  constructing  telegraph 
lines. 

Still  the  principles  of  law  governing  such  cases 
may  be  considered  as  well  settled ;  and  they  would 
in  all  material  respects  have  the  same  application  as 
in  cases  of  railways,  and  such  like  works  of  public 
improvement. 

In  The  Electric  Telegraph  Company  v.  The  Over- 
seers of  the  Poor  of  Salford,1  Pollock,  C.B.,  said, 
"  There  is  no  distinction  between  a  possession  ob- 
tained by  passing  things  from  fixed  points  in  space 
and  air,  and  passing  them  under  land  or  water.  The 
land  is  equally  occupied  in  all  three  cases,  because 
the  estate  in  it  extends  indefinitely  upwards  and  down- 
wards ;  and,  consequently,  whether  the  wires  pass 

1  24  Law  Journal  (N.S.)  Magistrates'  Cases,  146. 

3  [33] 


§  24  RIGHT   OF    WAY    BY  [PART   I. 

up  or  down,  the  proprietors  .of  them  exclusively  oc- 
cupy a  certain  portion  of  space  over  which  they  have 
complete  control,  and  may  exclude  every  one  else 
from  it." 

§  24.  The  power  to  purchase  real  estate  for  the 
purpose  of  constructing  lines,  may  be  conferred  by 
express  provision  in  the  charter  under  which  the  line 
is  operated,  or  under  general  law  applicable  to  all 
telegraph  companies ;  or,  in  the  absence  of  such  ex- 
press provision,  may  exist  as  one  of  the  implied 
powers  of  the  company,  which  it  may  exercise  as  a 
means  necessary  to  the  end  to  be  accomplished. 

Upon  a  purchase  of  lands  by  the  company  from  an 
individual,  .the  same  principles  governing  the  con- 
struction of  the  contract  would  be  applied,  as  in  the 
case  of  purchase  by  one  individual  from  another,  and 
need  not  be  further  considered.1  Having  acquired 
it,  the  company  may  use  it  for  all  purposes  necessary 
and  proper  for  the  construction  and  operation  of  its 
line. 

Whether  an  incorporated  company  would,  under 
such  purchase,  acquire  the  absolute  fee  to  the  land, 

1  Where  a  telegraph  company  has  the  right,  under  its  charter,  to  pur- 
chase lands  for  the  construction  of  its  line,  would  a  railroad  company  have 
the  power,  by  contract  with  the  telegraph  company,  to  give  it  the  use  of 
the  bed  of  its  track  upon  which  to  erect  its  posts  and  construct  its  line  ? 
Would  it  not  be  ultra  vires  in  the  railroad  company?  This  would  seem 
to  be  so  where  the  railroad  company  held  its  bed  under  process  of  con- 
demnation ;  the  erection  of  the  telegraph  posts  being  an  additional  servi- 
tude upon  the  land," requiring  the  consent  of  the  owner  of  the  fee;  or  a 
condemnation  for  that  use.  It  may  be  considered  as  a  question  of  little 
practical  importance,  however;  for  in  such  case  the  action  of  trespass, 
quare  clausum  fregit,  would  entitle  the  owner  to  only  nominal  damages ; 
nor  would  a  Court  of  Equity  restrain  by  injunction  the  erection  of  the 
posts,  where  no  damage  would  accrue  to  the  owner  of  the  soil. 
[34] 


CHAP.  III.]       PURCHASE    AND    CONDEMNATION.  §  25 

is  not  clear  from  the  authorities;  the  doubt  as  to 
such  right  seems  to  be  upon  the  principle,  that  the 
company  could  only  acquire  such  title  to  or  interest 
in  the  property  as  was  necessary  for  the  purpose  for 
which  it  was  obtained.  It  has  been  held  in  some 
cases,  that  a  railroad  company,  taking  lands  even  by 
deed  in  fee-simple,  only  have  the  right  of  way,  that 
being  all  that  such  a  corporation  was  capable  of  tak- 
ing,1 according  to  the  reasoning  in  those  opinions. 

§  25.  Whatever  may  be  the  interest  taken,  such 
land  would  not  only  be  subject  to  appropriation 
to  all  the  ordinary  and  necessary  uses  of  the  com- 
pany in  the  construction  and  operation  of  its  line, 
but  it  would  also  be  held  liable  for  the  satisfaction 
of  its  debts ;  and  could  be  assigned  or  mortgaged 
by  the  company  for  that  purpose,  or  taken  in  exe- 
cution, or,  in  equity,  upon  the  appointment  of  a 
receiver,  would  be  administered  as  a  part  of  the  as- 
sets of  the  company.  The  modes  of  proceeding  vary 
in  the  different  States,  for  subjecting  corporation  as- 
sets to  the  payment  of  debts.  Upon  a  forfeiture  of  the 
company's  charter,  and  the  consequent  destruction  of 
its  legal  existence,  or  in  case  of  its  voluntary  dissolu- 
tion, after  the  satisfaction  of  all  its  liabilities,  whether 
the  land  would  go  to  the  members  of  the  corporation 
in  their  individual  capacity  as  tenants  in  common,  or 
revert  to  the  grantor,  when  the  conveyance  was  in  fee, 
is  still  an  unsettled  question.  The  question  in  such 
case  would  probably  be,  whether  the  company  were 

1  Dean  ».  Sullivan  R.R.  Co.  2  Foster,  316  ;  United  States  v.  Harris,  1 
Sumner,  21.  Redfield  (vol.  i.  §  69,  subd.  3)  thinks  there  is  some  question 
as  to  the  precise  effect  of  a  deed  in  fee-simple  to  a  railroad  company. 

[35] 


§  26  RIGHT    OF    WAT    BY  [PART   I. 

capable  of  taking  the  fee ;  and  if  so,  the  grantor 
would  be  estopped  from  asserting  a  claim  to  it,  or 
indicating  the  direction  it  should  take. 

A  Court  of  Equity  would  decree  a  specific  per- 
formance of  a  contract  to  convey  land  to  a  telegraph 
company,  as  it  would  in  a  case  between  individuals.1 

§  26.  The  right  of  a  telegraph  company  to  take 
lands  necessary  for  the  construction  and  operation  of 
its  line,  by  compulsory  process,  exists  by  virtue  of  the 
right  of  eminent  domain,  which  is  an  inherent  pre- 
rogative of  sovereignty. 

This  can  only  be  done,  however,  upon  making  just 
compensation  to  the  owner. 

This  right  may  be  exercised  by  the  State  for  all 
objects  of  public  improvement,  convenience,  or  safety. 
It  may  be  exercised  in  the  construction  of  turnpikes, 
plank  roads,  ferries,2  canals,  railroads,  etc,3  and  un- 
questionably can  be  exercised  in  the  construction  of 
telegraph  lines,  as  they  are  works  of  public  utility 
and  convenience. 

The  power  to  take  lands  may  be  delegated  in 
general  terms  to  the  company,  and  there  is  no  neces- 
sity that  the  particular  lands  be  designated.4 

The  company  would  not  only  have  the  right  to 
appropriate  "  in  inmtum  "  so  much  land  as  was  neces- 

1  Reynolds  c.  Dunkirk  &  State  Line  R.R.  Co.  17  Barb.  613. 
1  Allen  v.  Farnsworth,  5  Yerg.  189. 

3  Bradly  v.  N.Y.  &  N.H.  R.R.  Co.  21  Conn.  294 ;  Varick  ».  Smith,  5 
Page,  137 ;  The  Newbury  Turnpike  Co.  v.  The  Eastern  R.R.  Co.  23  Pick. 
826  ;  The  Boston  &  Roxbury  Mill  Corp.  ».  James  Newman,  12  Pick.  467, 
468  ;  2  Kent,  339,  and  notes. 

4  Boston  Water  Power  Co.  r.  Boston  and  Worcester  R.R.  Co.  23  Pick. 
360. 

[36] 


CHAP.  III.]        PURCHASE    AND    CONDEMNATION.  §  27 

sary  for  the  construction  of  its  line,  but  also  so  much 
as  would  be  required  for  all  necessary  buildings,  sta- 
tions, offices,  etc.1 

§  27.  It  may  not  only  take  land,  but  it  may  take  the 
franchises  and  other  property,  of  other  corporations, 
if  it  should  be  found  necessary  for  the  construction  of 
its  line.  The  State  may  authorize  the  telegraph  line 
to  be  constructed  across  or  along  any  turnpike  or 
other  road  owned  by  a  private  corporation  so  as  to 
injure  or  entirely  destroy  its  use,  provided  just  com- 
pensation be  made.2  This  principle,  placing  corpo- 
rate franchises  in  the  same  category  with  all  other 
property,  in  the  exercise  of  the  right  of  eminent 
domain,  is  now  well  settled.3  And  the  power  to 
interfere  with,  or  even  destroy,  the  value  of  a  previous 
grant  may  result  from  express  words,  or  necessary 
implication  from  the  language  of  the  charter ;  as  also 
in  cases  where  it  appears  that  the  line  cannot  by 
reasonable  intendment  be  constructed  in  any  other 
way.4 

Telegraph  companies  frequently  construct  their 
lines  along  the  route  of  railways,  and  upon  the  bed 
of  the  road.  The  right  may  be  expressly  conferred 

1  Worcester  v.  Western  R.R.  Corp.  4  Met.  (Mass.)  564 ;  Nashville  & 
Chattanooga  R.R.  Co.  v.  Cowardin,  11  Hum.  348;  Vt.  Central  R.R.  Co. 
».  The  Town  of  Burlington,  28  Vt.  193;  The  State  (Cam.  &  Amb.  R.R. 
&  Trans.  Co.)  v.  Corn's  of  Mansfield,  3  N.J.  (Zab.)  R.  510. 

*  Central  Bridge  Corporation  v.  City  of  Lowell,  4  Gray,  474. 

3  Backus  v.  Lebanon,  11  N.H.  19  ;  West  River  Bridge  v.  Dix,  6  How. 
U.S.  507 ;  Richmond,  Fredericksburg,  &  Potomac  R.R.  Co.  v.  Louisa 
R.R.  13  How.  U.S.  83;  Boston  &  Lowell  R.R.  ».  Salem  &  Lowell  R.R. 
2  Gray,  35 ;  Springfield  v.  Connecticut  River  R.R.  4  Cush.  63. 

*  Boston  Water  Power  Co.  v.  Boston  &  Worcester  R.R.  Co.  23  Pick. 
360. 

[37] 


§  30  RIGHT    OF    WAY    BY  [PART   I. 

in  the  charter  of  the  company,  or  by  general  law 
applicable  to  all  telegraph  companies,  with  a  stipula- 
tion that  the  railroad  company  may  have  its  claim  for 
damages  for  such  use  of  its  bed;  and  the  right  would 
thus  be  conferred  by  virtue  of  the  law  of  eminent 
domain. 

§  28.  Whatever  conditions  precedent  are  imposed 
by  the  charter  or  the  general  law  under  which  the 
company  becomes  incorporated,  must  be  complied 
with,  before  the  company  can  take  lands  or  franchises 
by  compulsory  process ; l  but  when  it  has  complied 
with  such  conditions,  and  the  right  of  the  company  to 
appropriate  the  land  is  perfected  under  the  statute, 
it  has  the  right  to  enter  upon  and  appropriate  the 
lands  without  any  process  or  other  warrant  than  its 
charter.2 

§  29.  The  power  to  construct  its  line  between  spe- 
cified termini  would  authorize  it  to  take,  in  invi- 
tum^  sufficient  land  at  the  terminal  stations,  and  at 
such  intermediate  points  as  might  be  requisite,  for  the 
purpose  of  the  necessary  buildings  for  offices  to  oper- 
ate its  instruments,  and  such  other  purposes  as  might 
be  found  essential  for  properly  conducting  its  busi- 
ness. This  would  seem  to  be  so  in  analogy  to  the 
right  of  railroad  companies  to  take  land,  not  only  for 
the  purposes  of  its  track,  but  also  for  its  toll-houses, 
offices,  warehouses,  etc.3 

§  30.  The  mode  of  estimating  the  damages  to  land- 

1  Stacey  ».  Vermont  Central  R.R.  Co.  27  Vt  R.  39 ;  Williams  v.  Hart- 
ford &  New  Haven  R.R.  Co.  13  Conn.  110  —  construing  the  charter. 
1  Niagara  Falls  &  Lake  Ontario  R.R.  Co.  v.  Hotchkiss,  16  Barb.  270. 
J  1  Redfield  on  Railways,  §  68,  subd.  2. 
[38] 


CHAP.  III.]       PURCHASE    AND    CONDEMNATION.  §  30 

owners  is,  in  many  of  the  States,  designated  by 
general  laws  applicable  alike  to  all  telegraph  compa- 
nies ;  in  other  States,  there  are  no  such  general 
provisions ;  and  where  this  is  the  case,  the  charter 
under  which  the  line  is  operated  would  have  to  be 
consulted,  to  ascertain  the  mode  of  estimating  the 
damages.1  And  it  seems  to  be  now  well  settled  that 
the  remedy  given  in  such  cases  by  statute,  is  exclu- 
sive, and  not  cumulative.2 

1  See  Appendix.     By  the  26  &  27  Viet.  (1863)  c.  112,  §  6,  it  is  pro- 
vided, that  telegraph  companies  "  may  place  and  maintain  a  telegraph 
over,  along,  or  across  any  street  or  public  road,  and  place  and  maintain 
posts  in  or  upon  any  street  or  public  road,  and  may  alter  and  remove  the 
same. 

"  They  may,  for  the  purposes  aforesaid,  open  or  break  up  any  street 
or  public  road,  and  alter  the  position  thereunder  of  any  pipe  (not  being 
a  main)  for  the  supply  of  water  or  gas. 

"  They  may  place  and  maintain  a  telegraph  and  posts,  under,  in,  upon, 
over,  along,  or  across,  any  land  or  building,  or  'any  railway  or  canal,  or 
any  estuary,  or  branch  of  the  sea,  or  the  shore  or  bed  of  any  tidal  water, 
and  may  alter  or  remove  the  same.  Provided,  always,  that  the  company 
shall  not  be  deemed  to  acquire  any  right  other  than  that  of  user  only  in 
the  soil  of  any  street  or  public  road,  under,  in,  upon,  over,  along,  or  across 
which  they  place  any  work. 

"  Sec.  7.  In  the  exercise  of  the  powers  given  by  the  last  foregoing  section, 
the  company  shall  do  as  little  damage  as  may  be,  and  shall  make  full  com- 
pensation to  all  bodies  and  persons  interested,  for  all  damages  sustained  by 
them  by  reason  or  in  consequence  of  the  exercise  of  such  powers ;  the 
amount  and  application  of  such  compensation  to  be  determined  in  man- 
ner provided  by  the  Lands  Clauses  Consolidation  Act,  1845,  and  the 
Lands  Clauses  Consolidation  (Scotland)  Act,  1845,  respectively,  and  any 
act  amending  those  acts,  for  the  determination  of  the  amount,  and  applica- 
tion of  compensation  for  lands  taken  or  injuriously  affected." 

For  the  further  provisions  on  this  subject,  see  Appendix  A. 

2  1  Am.  Railway  Cases,  162-171;  Mitchell  t?.  Franklin  &  Col.  Turn-- 
pike Co.  3  Humph.  (Tenn.)  456 ;  Watkins  v.  Great  Northern  Railway 
Co.  6  Eng.  Law  &  Eq.  179;    Kimble  v.  White  Water  Valley  Canal,  1 
Carter,  285  ;  Troy  v.  The  Cheshire  Railway,  3  Foster,  83  :  but  see,  contra, 
Carr  v.  The  Georgia  Railroad  &  Banking  Co.  1  Geo.  (Kelly)  524. 

Where  the  company  have  been  guilty  of  negligence  or  want  of  skill  in 

[39] 


§  31  RIGHT    OF    WAY    BY  [PART  I. 

§  31.  If  the  telegraph  company  has  assumed  to 
appropriate  lands  or  the  franchises  of  other  com- 
panies in  violation  of  the  provisions  of  its  charter,  it 
is  liable  to  an  action  at  common  law,  at  the  suit  of  the 
individual  or  company  injured.  So  in  the  case  of 
the  South  Eastern  Railway  Company  v.  The  Euro- 
pean and  American  Electric  Telegraph  Company,1 
the  act  of  14  &  15  Viet.  c.  135,  §  37,  provided  that 
the  company  might  lay  down  and  place  their  pipes 
under  any  public  roads,  streets,  and  highways,  and 
along  and  across  such  places,  for  the  purpose  of  the 
telegraph,  and  break  up  the  pavement  or  soil  for  that 
purpose ;  but  that  nothing  in  the  provision  contained, 
shall  extend  to  any  railway  or  canal,  except  that  it 
should  be  lawful  for  the  company  to  carry  their  wires, 
pipes,  etc.,  directly,  but  not  otherwise,  across  any 
railway  or  canal.  The  South  Eastern  Railway  Com- 
pany, in  pursuance  of  the  provisions  of  their  act,  had 
carried  their  railway  on  a  level  across  a  part  of  the 
public  highway  in  the  city  of  Canterbury,  the  public 
having  the  full  use  of  the  highway,  except  when  the 
trains  were  passing.  The  telegraph  company  had 
dug  and  bored  under  the  railway,  for  the  purpose  of 
carrying  the  telegraph  under  the  spot  where  the  rail- 
way crossed  the  highway :  it  was  held,  that  this  was 


the  exercise  of  their  legal  rights,  or  have  omitted  some  duty  imposed  by 
statute,  they  make  themselves  liable  to  an  action  on  the  case  at  common 
law.  See  authorities  cited  in  1  Redfield  on  Railways,  §  75,  subd.  3,  4, 
and  notes. 

1  The  South  Eastern  Railway  Co.  v.  The  European  and  Am.  Elec. 
Print.  Teleg.  Co.  and  Friend,  24  Eng.  Law  &  Eq.  513,  Court  of  Ex- 
chequer; 8.C.  22  Law  J.  (N.S.)  Exch.  113;  9  Exch.  363;  2  Com.  Law 
Rep.  467. 
]40] 


CHAP.  III.]       PURCHASE    AND    CONDEMNATION.  §  32 

an  act  of  trespass  in  the  telegraph  company,  for  which 
an  action  would  lie  at  the  suit  of  the  railway  company. 
Park,  B.,  in  delivering  the  opinion  of  the  Court,  said, 
that,  as  to  railways,  the  telegraph  company,  under  the 
above  section  of  its  act,  could  only  carry  their  wires, 
pipes,  and  tubes  directly  "  across "  a  railway,  and  it 
seems  therefore  different  from  "under;"  and  the  power 
to  carry  "  across  "  did  not  enable  them  to  go  "  under  ;  " 
but  it  might  be  that  such  prohibition  would  not  apply 
if  the  railway  were  carried  over  the  highway  at  a 
great  height,  for  then  the  highway  and  railway  might 
be  considered  independent  of  each  other.  The  Tele- 
graph Company's  Act  further  provided,  that,  in  carry- 
ing their  wires,  tubes,  and  pipes  across  any  railway  and 
canal,  it  should  be  constructed  "  in  such  manner  and 
at  such  place  and  time,  as  not  in  any  wise  to  damage 
or  be  likely  to  damage  the  railway  or  canal,  or  any 
of  the  works  connected  therewith."  It  was  held,  that 
even  if  "  across "  could  be  construed  as  equivalent 
to  "  under,"  the  above  condition  must  be  complied 
with  ;  whereas  it  was  clear,  in  the  present  instance, 
these  conditions  had  not  been  complied  with,  for  the 
defendants  had  done  what  was  a  damage  to  the  rail- 
way. 

§  32.  Where  the  charter  of  a  telegraph  company 
previously  granted,  prescribed  a  different  mode  of 
assessing  damages  from  that  prescribed  by  the  general 
law,  it  would  seem  that  the  mode  prescribed  by  such 
charter  would  not  be  affected  by  the  general  law. 
It  has  been  so  held  in  New  York  in  case  of  railways.1 

1  Hudson  River  R.R.  Co.  v.  Cutwater,  3  Sandf.  689 ;  Visscher  v.  Hud- 
son River  R.R.  Co.  15  Barb.  37. 

[41] 


§  34  RIGHT    OF    WAY    BY  [PART  I. 

§  33.  It  is  supposed  that  few  cases  are  likely  to 
arise  of  claims  for  consequential  damages  in  the  con- 
struction of  telegraph  lines  ;  the  principles  governing 
such  cases,  should  they  arise,  would  be  similar  to 
those  of  railways,  and  will  be  found  fully  discussed  in 
the  treatises  and  authorities  cited  in  the  note.1 

§  34.  The  provision  authorizing  the  construction 
of  telegraph  lines  along  and  upon  or  under  public 
roads  and  highways,  so  as  not  to  incommode  the  pub- 
lic in  the  use  thereof,  is  to  be  found  in  the  general 
statutes  relating  to  telegraph  companies  in  England, 
Canada,  and  all  of  the  American  States  which  have 
general  laws  on  the  subject  of  telegraphs.2 

The  question  may  arise  as  to  whether  the  legisla- 
ture has  the  power  to  authorize  the  construction  of 
telegraph  lines  along  the  public  highways,  and  along 
and  upon  or  under  the  streets  of  a  town,  without  re- 
quiring the  owner's  consent,  or  directing  that  just  com- 
pensation shall  be  made  to  the  owner  of  the  fee. 
Upon  this  point  there  seems  to  have  been  much  con- 

1  1  Redfield  on  Railways,  §  71 ;  Pierce  on  Am.  Railroad  Law,  pp.  1 73- 
175. 

1  See  Appendix  A,  B,  F,  G,  I,  J,  K,  M,  N,  P,  R,  S,  T,  U,  W,  X,  Z, 
AA,  CC,  DD,  II,  JJ,  KK,  LL,  MM. 

The  laws  of  Connecticut  are  stringent,  and  a  little  peculiar.  No  line  is 
allowed  to  be  erected  in  or  upon  any  highway,  without  the  consent  of  the 
proprietors  of  the  land  adjoining  such  highway,  or,  in  case  such  consent 
cannot  be  obtained,  without  the  approbation  of  one  of  the  county  com- 
missioners, etc.;  then  providing  for  condemnation.  See  §  563,  Gen.  Stat. 
Kev.  1866. 

Sec.  565  authorizes  the  lines  already  constructed  to  remain,  but  pro- 
vides for  their  removal  if  they  become  at  any  time  an  annoyance  to  the 
public  use  of  any  such  highway,  or  to  an  individual  in  the  use  of  his  prop- 
erty ;  but  no  compensation  to  the  company  is  provided  for. 

Sec.  569  permits  new  lines  to  be  constructed  in  accordance  with  the 
general  provisions  of  this  act 
[42] 


CHAP.  III.]       PURCHASE    AND    CONDEMNATION.  §  34 

flict  of  opinion  where  the  question  has  been  consid- 
ered in  reference  to  railroads ;  the  ground  assumed 
being  that  the  highway  is  an  easement  in  the  public 
for  the  specific  purpose  of  passing  and  repassing,  and 
that  the  owner  of  the  soil  only  yielded  this  right,  and 
any  thing  more  is  an  additional  servitude  for  which  the 
owner  of  the  soil  is  entitled  to  compensation.  But, 
although  there  has  been  much  conflict  of  authority  as 
to  railways,  it  may  now  be  considered  as  the  better 
and  more  generally  received  opinion  in  the  American 
States,  that  the  owner  of  the  fee  in  land  over  which 
a  highway  or  street  passes,  has  no  claim  for  compen- 
sation against  railroad  companies  who  construct  their 
line  along  the  same  under  statutory  authority ; 1  the 
reason  assigned  being  that  railroads  are  but  improved 
highways.  How  this  may  be  upon  principle,  and 
whether  or  not  the  railway  track  should  be  considered 
an  additional  burthen  and  servitude  upon  the  land, 
there  can  be  little  doubt,  that  in  case  of  telegraph 
companies,  the  erection  of  posts  upon  the  highway, 
or  locating  pipes  under  the  highway,  for  the  wires, 
under  legislative  authority,  without  provision  for  com- 
pensation to  the  owner,  would  give  such  owner  the 
technical  right  to  damages,  although  such  damages 
would  in  most  cases  be  only  nominal. 

He  would   have  the  right  to  his  action  of  tres- 
pass at  law,2  and  though  the  maxim  de  minimis  non 

1  Mayor,  etc.,  of  Alleghany  v.  Ohio  &  Penn.  Railroad  Co.  26  Penn. 
355 ;  Corey  v.  Buffalo,  Corning,  &  New  York  R.R.  Co.  23  Barb.  482 ; 
Radcliff  v.  Mayor  of  Brooklyn,  4  Comst.  195;  Gould  v.  Hudson  River 
Railway,  2  Seld.  522.     See  also  Am.  Law  Reg.  vol.  i.  p.  196,  197. 

2  Seneca  Road  Co.  v.  Auburn  &  Rochester  R.R.  Co.  5  Hill,  170;  Bos- 
ton &  Lowell  R.R.  Corp.  v.  Salem  &  Lowell  R.R.  Co.  2  Gray,  36,  37. 

[43] 


§  35  PURCHASE   AND    CONDEMNATION.  [PART   I. 

cur  at  lex,  might  not  apply  in  case  of  plain  violation 
of  right,  there  can  be  but  little  doubt  that  a  Court  of 
Equity  would  refuse  to  entertain  a  bill  by  the  owner 
of  the  soil,  to  enjoin  the  company  from  making  such 
erections,  when  acting  under  authority  conferred  by 
statute  without  provision  for  compensation ;  and  it 
may  be  considered  as  a  question  of  little  or  no  prac- 
tical importance. 

§  35.  For  the  provisions  by  statute  in  reference  to 
the  mode  of  assessing  land  damages  in  England,  Can- 
ada, and  the  several  American  States,  see  the  appen- 
dix, and  chapter  on  Remedies.1 

1  By  the  26  &  27  Viet.  c.  112,  known  as  the  Telegraph  Act  of  1863, 
no  private  property  can  be  taken  by  compulsory  process  for  the  construc- 
tion of  telegraph  lines.  The  previous  consent  of  the  owner,  lessee,  and 
occupier  of  the  land  is  required  in  every  case.  The  consent  as  to  lands 
belonging  to  the  Crown  may  be  given  by  the  Commissioner  of  Woods, 
Forest,  and  Land  Revenues ;  and  in  cities  and  large  towns,  by  the  bodies 
having  control  of  such  cities  and  towns.  See  Appendix  A. 

[44] 


CHAP.  IV.]        POWERS    UNDER    THE    CHARTER.  §  37 


CHAPTER  IV. 

POWERS    UNDER   THE    CHARTER. 

§  36.  TELEGRAPH  companies,  like  all  other  corpora- 
tions, have  such  powers  as  are  expressly  conferred  by 
their  charter,  and  all  such  incidental  or  implied 
powers  as  are  necessary  to  carry  into  effect  the  ex- 
press powers.1 

They  act  through  such  officers  and  agents,  and  in 
such  manner,  as  the  charter  directs. 

§  37.  Among  their  ordinary  powers  are,  to  sue  and 
be  sued;  perpetual  succession;  power  to  contract 
within  the  scope  of  the  objects  for  which  they  were 
incorporated ;  to  make  their  own  by-laws ;  and  to 
hold  real  estate  for  the  purpose  for  which  they  were 
incorporated.2 

Incorporated  telegraph  companies  have  the  inci- 
dental power  to  dispose  of  their  property  real  and 
personal ;  they  may  exercise  this  power  to  secure  or 
discharge  a  debt  lawfully  created  by  them  through 

1  Cal.  State  Teleg.  Co.  v.  Alta  Teleg.  Co.  22  Cal.  398 ;  Head  &  Ar- 
mory v.  The  Providence  Insurance  Co.  2  Cranch,  127;  Bank  U.S.  v. 
Dandridge,  12  Wheat.  71;  Bank  of  Augusta  v.  Earle,  -13  Pet.  519; 
Perrine  v.  Chesapeake  &  Delaware  Canal  Co.  9  How.  U.S.  172. 

8  As  to  whether,  in  any  particular  case,  the  telegraph  company  has  the 
power,  under  its  charter,  to  hold  certain  property,  is  a  question  alone  be- 
tween the  State  and  the  company,  and  third  persons  cannot  call  it  in 
question.  Cal.  State  Teleg.  Co.  ».  Alta  Teleg.  Co.  22  Cal.  398. 

[45] 


§  38  POWERS    UNDER    THE    CHARTER.  [PART  I. 

their  agents ;  they  might  lawfully  create  a  debt  in 
the  first  instance,  by  stipulating  for  a  pledge  or  mort- 
gage of  their  property;  they  would  have  the  right 
to  dispose  of  their  posts,  wires,  operating  apparatus, 
buildings,  and,  in  short,  whatever  property  they  may 
have  acquired  under  their  charter,  either  by  sale  abso- 
lutely, or  by  assignment  for  the  benefit  of  their  cred- 
itors, or  by  mortgage  to  secure  a  particular  debt'.1 

They  have  also  the  right  to  become  the  purchasers, 
from  individuals,  of  exclusive  franchises,2  or  to  become 
the  lessees  of  another  telegraph  company.3 

§  38.  While  it  may  be  considered  as  the  settled 
rule  of  the  courts  to  adopt  a  strict  construction  of  the 
powers  of  a  corporation,  yet  this  must  be  understood 
in  a  fair  and  reasonable  sense,  and  such  a  construc- 
tion would  be  given  in  all  cases  as  would  be  in  fur- 
therance of  the  real  objects  to  be  accomplished  by  the 
incorporation  of  the  company.  The  rule  of  strict 

1  Pope  v.  Brandon,  2  Stewart  (Ala.  R.)  401 ;  Union  Bank  v.  U.S. 
Bank,  4  Hum.  369  ;  Hopkins  v.  Gallatin  Turnpike  Co.  4  Hum.  403 ;  Al- 
len r.  Mont.  R.R.  Co.  11  Ala.  437;  Angell  &  Ames  on  Corp.  c.  5,  §§ 
187-190;  Jackson  v.  Brown,  5  Wend.  590;  Enders  v.  Board  of  Public 
Works,  1  Grattan,  364;  Gordon  v.  Preston,  1  Watts,  385;  Morrill  v. 
Noyes,  3  Am.  Law  Reg.  (N.S.)  18. 

Where,  the  company  has  executed  a  mortgage  of  all  its  property, 
after-acquired  property  would  pass  to  the  mortgagee ;  Willink  v.  Morris 
Canal  and  Banking  Co.  3  Green's  Ch.  377;  Pierce  v.  Emery,  32  N.H. 
484;  Howe  v.  Freeman,  14  Gray,  566;  Morrill  v.  Noyes,  Receiver,  3 
Am.  Law.  Reg.  (N.S.)  18;  Charles  River  Bridge  Co.  v.  Warren  Bridge 
Co.  11  Pet.  420. 

*  Cal.  State  Teleg.  Co.  v.  Alta  Teleg.  Co.  22  Cal.  398. 

•  Nova  Scotia  Teleg.  Co.  v.  Am.  Teleg.  Co.,  13  Am.  Law  Reg.  365. 
By  the  26  &  27  Viet  c.  112  (1863),  §  43,  Telegraph  act,  —  it  is  pro- 
vided that  the  company  shall  not  sell,  transfer,  or  lease  its  undertaking  or 
works  to   any  other  company  or  person,  except  with  the  assent  of  the 
Board  of  Trade.    Appendix  A. 

[4G] 


CHAP.  IV.]    POWERS  UNDER  THE  CHARTER.        §  39 

construction  would  be  applied  with  more  stringency 
in  all  matters  trenching  upon  and  abridging  impor- 
tant legislative  functions ;  as,  exemption  from  taxa- 
tion ;  the  exclusive  power  to  operate  the  telegraph 
line  within  given  limits ;  also,  in  all  cases  interfering 
with  private  rights ;  as,  taking  lands  by  compulsory 
process,  interfering  with  previously  granted  fran- 
chises, etc.1  So,  also,  as  to  the  power  to  change  the 
location  of  the  route  for  the  telegraph  line.2 

In  all  such  cases,  if  there  should  be  any  ambiguity 
or  doubt  as  to  the  extent  of  the  power  conferred,  or 
the  mode  of  its  exercise,  it  would  be  construed  most 
strongly  against  the  company.  In  England,  the  case 
would  be  sent  from  the  equity  to  the  law  courts  to 
settle  the  right. 

§  39.  It  seems  that  the  weight  of  the  American 
authorities  recognizes  the  right  in  railroad  companies, 
without  being  authorized  so  to  do  by  statute,  to  sell, 
lease,  mortgage,  or  assign  for  the  benefit  of  creditors, 
all  their  property,  real  and  personal,  including  the 
road  track,  rolling  stock,  machine  shops,  depots,  etc., 
to  the  extent  of  vesting  in  the  assignee  the  right  to 
run  the  trains,  collect  the  tolls,  and  generally  to  take 
the  entire  management  and  control  of  the  road,  and 
keep  it  in  active  operation,  as  it  was  prior  to  the  as- 
signment ; 3  and  the  same  principles  and  reasoning 

1  2  Greenleafs  Cruise,  tit.  27,  §  29,  in  note  pp.  67,  68  ;  1  Kedfield  on 
Railways,  c.  11  —  Eminent  Domain  ;  Phila.  &  W.  R.R.  Co.  v.  Maryland, 
10  How.  U.S.  376. 

2  Morehead  v.  Little  Miami  R.R.  Co.,  17  Ohio,  340;  Little  Miami 
R.R.  Co.  ».  Naylor,  3  Ohio  (N.S.)  235  ;  and  Redfield  on  Railways. 

3  Hall  v.  Sullivan  R.R.  Co.  (U.S.  Cir.  Ct.  for  District  of  N.  Hamp- 
shire) ;  Arthur  v.  Commercial  and  R.R.  Bank  of  Yicksburg,  9  Smedes  & 

[471 


§  39  POWERS    UNDER   THE    CHARTER.          [PART  I. 

adopted  to  support  this  view  would  undoubtedly  ap- 
ply to  telegraph  companies ;  but  the  better  opinion 
seems  to  be  that  it  cannot  mortgage  or  otherwise  dis- 
pose of  the  franchise  of  being  a  corporation,  and  of 
taking  property  under  the  law  of  eminent  domain. 
Such  an  artificial  being  can  only  be  created  by  the 
State,  and  it  cannot  delegate  this  artificial  existence 
unless  it  is  expressly  authorized  so  to  do  by  statute ; : 
but  whatever  of  its  franchises  are  of  a  character  to  be 
exercised  and  enjoyed  by  a  natural  person,  have  the 
incidents  of  property,  and  may  be  assigned  by  the 
company  in  the  same  manner  and  to  the  same  extent 
as  its  other  property.2 

Marsh.  394,  432;  State  ».  Rives,  5  Iredell,  297.  But  see,  contra,  Pierce 
».  Emery,  32  N.H.  484. 

1  State  v.  Rives,  5  Iredell,  306 ;  Robins  v.  Embry,  1  Smedes  &  M.  Ch. 
269. 

1  In  the  valuable  work  of  Mr.  Pierce  on  American  Railroad  Law,  pp. 
528,  529,  it  is  said:  "  The  question  as  to  the  power  of  a  railroad  company 
to  mortgage  its  road  has  been  much  complicated,  from  the  circumstance 
that,  as  railroads  are  usually  owned  and  operated  by  corporations,  the 
franchise  of  being  a  corporation,  which  is  from  its  nature  not  assignable, 
has  been  considered  in  connection  with  the  power  to  use  the  road,  and  en- 
joy its  revenues,  which  differs  essentially  from  existing  and  acting  as  an 
artificial  body.  But  there  is  no  reason  why  a  railroad  may  not  be  owned 
by  a  private  individual,  who  has  obtained  from  the  legislature  a  grant  of 
power  to  exercise  its  right  of  eminent  domain  for  that  purpose,  and  to 
receive  tolls  for  persons  and  goods  carried  over  the  same ;  the  same  public 
duties  being  imposed  upon  him  as  upon  a  corporate  body  receiving  the 
same  grant.  It  would  be  difficult  to  maintain  that  the  individual  grantee  of 
such  a  power  could  not,  after  he  had  appropriated  his  right  of  way,  like  the 
owner  of  a  ferry  franchise,  transfer  the  right  to  use  it  and  enjoy  the  tolls ; 
and  it  is  conceived  that  the  same  power  in  this  respect  exists  in  a  corpora- 
tion, as  in  an  individual.  Neither  could  bestow  the  franchise  of  being  a 
corporation,  which  would  be  in  effect  creating  a  new  one ;  while  both  are 
under  public  duties,  and  upon  general  principles  their  powers  and  obliga- 
tions would  be  the  same. 

"  It  is  objected  to  the  power  of  the  company  to  mortgage  its  road,  that  it 
[48] 


CHAP.  IV.]    POWERS  UNDER  THE  CHARTER.        §  40 

But  such  transfer,  or  other  disposition  of  its  prop- 
erty, must  be  in  furtherance  of  some  purpose  author- 
ized by  its  charter. 

§  40.  In  England,  on  the  contrary,  it  is  held,  that  a 
railroad  company  cannot  mortgage  its  track,  or  trans- 
fer the  management  of  its  road ;  that  such  acts  are 
ultra  vires ;  nor  could  it  lease  its  road  to  another 
company,  or  form  a  partnership  arrangement  with 
another  company  for  a  share  of  the  profits  made  by 
both  companies ;  such  transfer  and  such  agreement 
being,  as  there  considered,  against  public  policy,  and 
are  held  to  be  void,  even  if  assented  to  by  all  the 
stockholders.1 

But  such  disposition  of  its  property,  or  such  agree- 
ments, when  authorized  by  act  of  Parliament,  are  held 
valid.2 

The  power  of  a  telegraph  company  to  mortgage  or 
otherwise  dispose  of  its  line,  and  the  accessories  there- 
to, would,  undoubtedly,  be  determined  in  the  respec- 
tive countries,  by  these  decisions  in  England  and 
America  in  reference  to  railroads. 

is  a  public  highway.  The  right  of  the  State  to  condemn  private  property 
for  the  road  rests  on  the  ground  that  it  is  to  be  used  for  public  purposes. 
The  State,  it  has  been  held,  may  intervene  to  prevent  the  road  from  being 
used  for  other  purposes  than  a  public  highway,  and  to  compel  the  company 
to  use  it  for  that  purpose.  But  the  proposition  that  the  road  is  a  public 
highway,  if  admitted,  would  not  require  the  admission  of  its  disability  to 
transfer  the  right  to  use  the  same.  The  right  of  the  State  to  have  it  used 
for  public  travel  and  transportation  does  not  interfere  with  its  management 
by  other  parties  than  the  original  corporation  and  their  enjoyment  of  the 
tolls ;  and  if  it  did,  it  would  seem  to  be  the  right  of  the  State  to  assert  or 
waive  it  at  its  pleasure,  and  not  to  be  taken  advantage  of  collaterally." 

1  Winch  v.  The  Birkenhead,  Lancashire,  &  Cheshire  Junction  Rail- 
way Co.  18  Eng.  L.  &  Eq.  R.  506 ;  S.  &  B.  R.R.  Co.  v.  L.  &  N.  W.  R.R. 
Co.  21  ib.  319  ;  Mayor,  &c.,  Norwich  v.  Norfolk  R.R.  Co.  30  ib.  143. 

8  Bemau  v.  Rufford,  6  Eng.  L.  &Eq.  R.  106.   - 

4  [49] 


§  40  POWERS    UNDER    THE    CHARTER.  [PART   I. 

Would  a  general  assignment,  or  a  mortgage,  by  a 
telegraph  company,  of  its  line  and  other  property,  to 
trustees  or  mortgagees,  together  with  the  power  to 
them  to  continue  the  active  management  of  the  line 
in  the  transmission  of  messages,  authorize  such  trus- 
tees or  mortgagees  to  use  the  operating  instruments 
which  had  been  patented,  when  the  exclusive  right 
to  use  such  patent. had  been  conveyed  to  the  com- 
pany by  the  patentee,  but  no  express  authority  in  the 
instrument  vesting  the  company  with  the  right  to 
transfer  the  same?  Would  such  use  by  the  mort- 
gagee or  trustee  be  an  infringement  of  the  patent 
right  1  It  has  been  held,  where  a  railroad  company 
had  used  a  patented  improvement  for  their  brakes, 
licensed  to  the  company  by  the  patentee,  who  con- 
veyed "  the  full  and  exclusive  right  and  liberty  of 
using  the  said  improvement,"  and  the  company  had 
assigned  the  revenues  of  the  railroad,  and  the  use  of 
the  rolling  stock  to  a  preferred  creditor,  that  the  use, 
by  the  assignee,  of  the  cars  having  the  attached 
patented  brakes  did  not  render  him  liable  to  account 
for  infringement  upon  the  patent  right,  and  was  no 
infringement  of  the  patent ;  that  the  assignee  was  to 
be  viewed  in  the  light  of  an  agent  of  the  company, 
and  his  use  of  the  cars  was  the  same  as  that  of  the 
company,  and  exclusive  as  to  third  persons,  or  other 
interests,  within  the  meaning  of  the  license  from  the 
patentee  to  the  company.1 

1  Asahel  Emigh  v.  Selah  Chamberlain.     In  the  District  Court  of  the 

United  States  for  the  District  of  Wisconsin,  in  Equity.  Am.  Law  Reg.  (N. 

S.)  vol.  i.  p.  207.    Miller,  J.,  said,  "  The  complainant,  as  the  assignee,  for  the 

State  of  Wisconsin,  of  a  patent  right  to  Francis  A.  Stevens,  fora  combiua- 

[50] 


CHAP.  IV.]       POWERS    UNDER    THE    CHARTER.  §  41 

§  41.  A  telegraph  line  might  be  taken  in  execution 

tion  and  arrangement  of  levers,  link-rods,  and  shoes  or  rubbers,whereby  each 
wheel  of  both  trucks  of  a  car  on  a  railway  is  retarded  with  uniform  force 
when  the  brake  is  put  in  operation,  brings  this  bill  against  the  defendant, 
for  operating,  or  causing  to  be  operated,  the  La  Crosse  &  Milwaukee  Rail- 
road in  this  State,  by  the  use  of  cars  with  the  improved  brakes.  The 
defendant  sets  up  a  deed  from  the  patentee,  Francis  A.  Stevens,  given 
previous  to  complainant's  assignment  to  the  said  railroad  company, 
whereby,  in  consideration  of  six  hundred  dollars  to  him  paid  in  full  satis- 
faction, he  licensed  and  conveyed  to  the  company  the  full  and  exclusive 
right  and  liberty  of  using  the  said  improvement  on  any  or  all  their  own 
cars,  over  any  part  of  their  road.  Defendant  further  shows  that,  by  an 
instrument  of  writing,  called  by  him  a  lease  or  mortgage,  the  company 
granted  to  him  for  an  indefinite  time  its  entire  railroad  and  road  route, 
together  with  right  of  way  and  depot  grounds,  and  all  buildings  and 
property  of  every  description,  including  the  rolling  stock.  He  to  operate 
the  road,  and  to  receive  all  the  revenues,  and  out  of  them  defray  all 
expenses  of  operating  the  road,  purchasing  additional  rolling  stock,  paying 
interest  of  liens,  and  the  residue  to  apply  towards  a  claim  of  his  own 
against  the  company.  And  when  his  claim  should  be  paid,  either  by  the 
company  or  out  of  the  revenues  of  the  road,  the  property  to  revert  to 
the  company.  The  company  was  using  the  patented  improvement  upon 
the  cars  that  passed  to  Chamberlain,  and  which  he  continued  to  use. 
Chamberlain,  after  operating  the  road  for  some  time,  under  the  deed 
of  the  company,  was  superseded  by  an  order  of  this  Court  appointing 
a  receiver. 

"  The  assignment  to  complainant  excepts  the  license  to  the  company. 
Whether  Stevens  would  be  the  proper  person  to  claim  damages  is  not 
made  a  question  by  the  pleadings.  Can  the  complainant  require  the 
defendant  to  account  to  him  ?  —  is  the  only  question  submitted. 

"  The  deed  of  Stevens  to  the  company,  licenses  and  conveys  the  full 
and  exclusive  right  of  using  the  improvement  on  their  own  cars.  There 
is  no  power  granted  to  the  company  to  vest  the  right  in  any  person,  by 
conveyance  or  otherwise.  It  is  simply  a  license. 

"  In  order  to  test  the  right  set  up  by  defendant,  we  must  bear  in 
mind  that  the  railroad  company  is  incorporated  by  a  law  of  the  State, 
and  to  such  Stevens  made  the  license,  and  as  such  the  company  made 
the  assignment  to  the  defendant.  The  duties  imposed  upon  the  com- 
pany by  its  charter  were  not  fulfilled  by  the  construction  of  the  road. 
Important  franchises  were  granted  the  company  to  enable  it  to  provide 
the  facilities  to  communication  and  intercourse  required  for  the  public  con- 
venience. Corporate  management  and  control  over  these  were  prescribed, 
and  corporate  responsibility  for  their  insufficiency  was  provided,  as  a  re- 

[51] 


§  41  POWERS    UNDER    THE    CHARTER.  [PART   I. 

against  the  company,  although  the  franchise  of  being 

numeration  to  the  community  for  the  legislative  grant.  The  corpora- 
tion cannot  absolve  itself  from  the  performance  of  its  obligation,  without 
the  consent  of  the  legislature.  Defendant  could  only  operate  the  road 
under  and  subordinate  to  the  charter  of  the  company  ;  and  not  he,  but  the 
company,  was  liable  for  the  performance  of  all  the  corporate  duties  to  the 
public.  He  only  could  perform  these  duties  in  the  name  of  the  company. 
The  franchises  of  the  company  were  not,  and  could  not  be,  vested  in  him. 
He  was  nominally  substituted  for  the  company  in  the  active  use  of  the 
road  and  property. 

"  The  corporation,  as  a  creature  of  the  law,  must  use  the  franchises 
granted  it  by  means  of  officers  of  its  own  appointment,  either  directly  or^ 
indirectly.  Railroad  Company  v.  Winans,  17  How.  U.S.  30-39,  and 
cases  cited. 

"  It  is  contended,  on  the  part  of  the  complainant,  that  defendant  was  a 
mortgagee  in  possession,  and  as  such  he  held  under  a  title,  in  the  nature 
of  a  conveyance  from  the  company.  This  Court  has  uniformly  considered 
the  rolling  stock  of  a  railroad  company  as  a  fixture  not  liable  to  levy  and 
sale  apart  from  the  realty.  And  we  have  placed  liens  by  mortgage  of 
these  companies  on  the  same  footing  as  of  individuals.  In  this  State  the 
mortgagor  is  the  owner  of  the  premises,  until  a  sale  is  made  in  pursuance 
of  a  decree  of  Court.  The  note  and  mortgage  are  choses  in  action.  Shel- 
don v.  Sill,  8  How.  U.S.  441.  The  mortgagor  may  put  the  mortgagee  in 
possession  of  the  mortgaged  premises  until  the  debt  is  paid  by  the  receipt 
of  rents  and  issues ;  but  the  mortgagee  would  not  hold  adversely  to,  but 
under,  the  mortgagor. 

"  Technically,  the  deed  under  which  the  defendant  held  possession  of 
the  road  was  not  a  mortgage.  The  defeasance  does  not  make  it  a  mort- 
gage ;  as,  without  it,  the  company  would  have  the  equitable  right  to 
regain  possession  upon  discharging  its  debts  to  defendant,  and  to  require 
him  to  account.  The  deed  is  an  assignment  of  the  revenues  of  the  road 
to  a  preferred  creditor,  with  the  privilege  of  using  the  road  and  property 
of  the  company  for  the  mutual  interest  of  the  debtor  and  creditor.  The 
rolling  stock  and  the  road,  at  the  date  of  the  assignment  to  the  defendant, 
were  subject  to  mortgages,  whose  accruing  interests  he  became  obliged 
to  pay  out  of  the  revenues  of  the  road.  If  he  replenished  the  stock,  he 
did  so  from  the  same  source.  The  company,  being  insolvent,  devised  the 
scheme  of  placing  their  property  in  the  hands  of  defendant,  for  the  pur- 
pose of  completing  the  road  to  La  Crosse,  of  paying  the  annual  interest 
of  liens,  and  of  satisfying  his  claim. 

"  Although  this  Court  pronounced  the  arrangement  fraudulent  and  void 
as  to  creditors,  yet  it  was  valid  between  the  parties,  and  this  suit  can  be 
defended  under  it.  The  deed  to  defendant  is  not  a  conveyance  of  the 
[52] 


CHAP.  IV.]       POWERS    UNDER   THE    CHARTER.  §  42 

a  corporation  could  not  be.  It  has  been  so  held  in 
case  of  railways.1 

§  42.  When  once  the  company  has  located  the 
route,  in  the  sense  of  the  English  statutes,  upon  the 
location  of  railroads,  canals,  etc.,  or  has  had  lands 
condemned,  under  American  statutes,  or  has  entered 
upon  streets,  highways,  etc.,  in  such  manner  as  to 
indicate  the  precise  line  for  the  wires,  that  should  be 
regarded  as  a  final  election,  binding  on  all  parties. 
The  public  have  a  right  to  adjust  business  in  view  of 
changes  wrought  by  this  exercise  of  the  right  of 
eminent  domain;  and  the  company  should  not  be 
permitted  to  change  the  route  without  the  consent  of 
the  legislature.  This  power  to  alter  the  route  should 
be  strictly  construed,  whether  contained  in  the  origi- 
nal charter,  or  in  subsequent  enactments.2  We  think 

property.  The  rolling  stock  was  the  property  of  the  company  in  defend- 
ant's hands.  It  might  as  well  be  claimed  that  the  receiver  appointed  by 
this  Court  should  account  for  the  use  of  the  patented  improvement,  which 
I  presume  will  not  be  pretended. 

"  The  receiver  holds  the  property  of  the  company  for  the  benefit  of  its 
creditors.  Defendant  did  so  with  consent  of  the  company  for  the  same 
purpose.  In  both  cases  the  company  is  the  owner  of  the  cars,  with  the 
patented  improvement  attached.  The  company  did  not  divest  itself,  by 
its  deed  to  defendant,  of  its  corporate  entity  or  property. 

"  Defendant  is  to  be  viewed  in  the  light  of  an  agent  and  trustee.  He 
was  a  mere  substitute  for  the  company,  and  his  use  of  the  cars  was  the 
same  as  that  of  the  company,  and  exclusive  as  to  third  persons  or  other 
interests,  in  the  meaning  of  the  license." 

1  State  v.  Rives,  5  Iredell,  29  7;  but  see,  contra,  Ammant  v.  New  Alex- 
andria &  Pittsburg  Turnpike,  13  Sergt.  &  R.  210.  Where  satisfaction 
by  execution  at  law  cannot  be  had,  the  tolls  may  be  reached  in  equity. 
Allen  v.  Montgomery  R.R.  Co.  11  Ala.  437 ;  Bigelow  v.  Cong.  Society  of 
Middleton,  11  Vt.  283. 

a  An  authority  to  change  the  location  of  the  line  during  the  progress 
of  the  work  does  not  imply  power  to  change  it  after  the  work  has  been 
completed.  Morehead  v.  The  Little  Miami  R.R.  Co.  17  Ohio,  340. 

[53] 


§  42  POWERS    UNDER    THE    CHARTER.  [PART   I. 

this  is  the  true  doctrine  in  all  cases  where  the  fran- 
chise has  been  asserted,  and  the  right  exhausted  by 
election.  It  has  been  applied  to  railroads,  whether 
the  case  be  that  of  an  attempt  to  relocate  on  the 
property  of  an  individual,  or  that  of  using  a  street  or 
highway  for  the  purpose.1 

1  The  case  of  the  Little  Miami  R.R.  Co.  v.  Naylor,  2  Ohio  (N. 
S.)  R.  235,  re-affirms  the  case  of  Morehead,  and  declares  that  when  the 
railroad  company  have  once  located  their  road,  their  power  to  relocate, 
and  for  that  purpose  to  appropriate  the  property  of  an  individual,  has 
ceased ;  and  that  the  same  rule  obtains  where  the  attempt  is  made  to 
appropriate  a  street  or  highway.  In  Naylor's  case  the  company  had  built 
their  road  upon  a  street,  and  afterwards  changed  the  track,  and  located  the 
road  off  the  street,  merely  using  the  street  for  the  purpose  of  passing 
from  the  south  to  the  north  side  thereof.  In  thus  crossing  the  street,  the 
track  ran  within  a  few  feet  of  the  premises  of  Naylor,  which  were  much 
injured  by  the  relocation.  The  Court  said,  "  The  railroad  company  had 
no  right  to  use  the  street  at  all,  except  by  the  permission  of  the  legisla- 
ture ;  the  grant  to  use  the  street  for  a  track  did  not  give  them  the  property 
in  it  to  the  exclusion  of  the  public ;  they  could  only  lay  their  track  and 
run  it,  doing  as  little  damage  to  the  road,  as  a  highway  for  general  travel, 
as  possible.  The  property  bounding  on  it  would  be  used  and  improved 
in  reference  to  the  railroad  as  located,  which  every  person  would  be 
authorized  in  supposing  to  be  permanently  fixed." 

It  was  provided  in  this  charter,  that,  if  said  corporation,  after  having 
selected  a  route  for  said  railway,  find  any  obstacle  to  continuing  said 
location,  either  by  the  difficulty  of  construction,  or  procuring  right  of 
way  at  reasonable  cost,  or  whenever  a  better  or  cheaper  route  can  be 
had,  it  shall  have  authority  to  vary  the  route,  and  change  the  location. 
In  construing  this,  the  Court  said  (p.  240),  "  It  is  evident  that  the  change  of 
location  provided  for  is  before  the  road  is  made,  and  is  in  fact  only  a 
change  of  selection." 

In  further  support  of  the  text,  see  Canal  Co.  ».  Blakemore,  1  Cl.  & 
Fin.  262;  State  v.  Norwalk  &  Danbury  Turnpike  Co.  10  Conn.  157; 
Turnpike  Co.  v.  Hosmer,  12  Conn.  364;  Louisville  &  Nashville  Branch 
Turnpike  Co.  v.  Nashville  &  Ky.  Turnpike  Co.  2  Swan,  282 ;  Griffin  v. 
House,  18  John.  397;  Blakemore  v.  Glamorganshire  Canal  Co.  1  M.  & 
K.  154. 

The  case  of  The  South  Carolina  R.R.  Co.  ».  Blake,  9  Rich.  228, 
does  not  militate  against  the  principle  announced  in  the  text.  It  rests 
upon  a  construction  of  a  charter.  Wardlaw,  J.,  said  (p.  233),  "  An  ex- 
[54] 


CHAP.  IV.]        POWERS    UNDER    THE    CHARTER.  §  44 

§  43.  By  the  general  statutory  laws  of  England, 
Canada,  and  such  of  the  American  States  as  have 
general  laws  on  the  subject  of  telegraphs,  it  is  provid- 
ed, that  they  may  construct  their  lines  along  the 
public  highways,  and  across  navigable  streams,  so  as 
not  to  incommode  the  public  in  the  use  of  the  one,  or 
the  navigation  of  the  other  ;  without  any  such  express 
restrictions,  they  would  have  no  power  to  construct 
their  lines  so  as  to  interfere  with  such  public  use, 
unless  it  should  be  made  clearly  to  appear  that  it  was 
impossible,  or  wholly  impracticable,  to  construct  the 
line  otherwise. 

§  44.  It  would  be  within  the  legitimate  scope  of 
the  powers  of  a  telegraph  company  to  make  an 
arrangement  with  another  telegraph  company  for 

animation  of  these  charters  will  show  that  the  right  to  keep  up  and 
employ  the  railroad  is  given  in  the  same  breath  as  the  right  to  make  it ; 
and  that  the  powers  of  acquiring  lands,  by  purchase  or  otherwise,  extend 
not  less  to  the  purpose  of  varying  and  altering  plans,  and  of  obtaining 
materials  for  repairing  and  sustaining  the  road  and  its  appurtenances, 
than  to  the  purposes  of  an  original  location  and  construction,  and  embrace 
accommodations  for  all  agents,  those  subsequent  as  well  as  those  first 
employed.  1828,  sec.  1,  9, 10, 14 ;  1835,  sec.  32."  The  company  wished  to 
acquire  a  certain  parcel  of  ground,  for  uses  arising  subsequent  to  the  con- 
struction of  the  road ;  the  land-owner  resisted  the  application  for  com- 
missioners to  value,  upon  the  ground  that  the  right  and  authority  granted 
to  the  said  company,  to  have  the  lands  of  individual  citizens  assessed  and 
vested  in  them,  was  conferred  to  enable  them  to  locate  and  construct  a 
track  within  the  limits  prescribed,  and  that  it  had  long  since  fully 
exercised  and  exhausted  this  right,  by  the  completion  of  the  said  track. 
The  Court  said,  that,  "  by  the  act  of  1828,  the  right  of  taking  is  co- 
extensive with  the  right  of  purchasing,  and,  like  the  latter,  is  limited 
by  the  uses  and  purposes  specified"  (p.  236);  and  therefore  it  was 
held,  that  an  issue  should  be  made,  and  the  Court  should  determine 
whether  the  demand  made  was  within  the  province  of  the  charter,  upon 
a  traverse,  if  one  was  desired  by  the  land-owner.  See  also  1  Redfield 
on  Railways,  §  105.  • 

[55] 


§  46  POWERS    UNDER    THE    CHARTER.  [PART  I. 

connecting  the  lines  of  the  two  companies  for  the 
purpose  of  transmitting  messages  over  each  other's 
wires ;  and  this  might  be  justly  regarded  as  one  of 
the  implied  or  incidental  powers  of  the  company,  as 
being  important,  if  not  essential,  to  carrying  into 
effect  the  purposes  for  which  it  was  incorporated. 

The  rights  and  liabilities  of  the  company  in  rela- 
tion to  the  sender  of  the  message,  growing  out  of 
such  an  arrangement  with  another  line,  will  be  con- 
sidered hi  a  subsequent  chapter.1 

But  such  power  to  form  connections  with  other 
lines  would  not  authorize  a  consolidation  of  two 
companies,  or  allow  them  to  consolidate  their  funds, 
or  to  form  a  partnership  in  reference  .to  their  funds. 
To  do  this  would  require  express  authority  by  statute.2 

§  45.  It  is  the  well-settled  rule  in  America,  that 
a  contract  is  binding  upon  an  incorporated  com- 
pany although  not  under  seal;  and  it  has  the  same 
power  to  contract  by  parol,  and  by  writing  not  under 
seal,  where  the  nature  of  the  contract  requires  it  to  be 
in  writing,  as  a  natural  person ;  and  a  seal  may  now 
be  considered  as  no  more  necessary  in  contracts  to 
which  incorporated  companies  are  parties,  than  when 
made  between  individuals.  And  there  seems  to  be  a 
growing  disposition  in  the  English  courts  to  relax 
the  rule  that  the  contracts  of  corporations  must  be 
under  seal. 

§  46.  A  company  will  be  bound  by  a  contract  or 

1  See  post,  Part  n.  c.  5. 

1  N.Y.  &  Sharon  Canal  Co.  v.  Fulton  Bank,  7  Wend.  412.     By  gen- 
eral law  on  the  subject  of  Telegraphs  in  Ohio  and  New  York,  provision 
is  made  for<he  consolidation  of  companies.     See  Appendix,  AA,  CC. 
[56] 


CHAP.  IV.]        POWERS    UNDER    THE    CHARTER.  §  46 

deed  of  settlement,  which  is  beneficial,  or  under  which 
it  has  taken  profit,  although  not  made  in  the  mode 
prescribed  by  the  charter.  In  the  case  of  Reuters. 
The  Electric  Telegraph  Co.,1  it  appeared  that  the 
defendant  was  incorporated  by  Royal  Charter  for 
the  purpose  of  establishing  telegraphic  communica- 
tion between  Great  Britain  and  other  countries  by 
means  of  a  submarine  telegraph  to  Holland.  The 
charter  required  that  the  business  of  the  company 
should  be  conducted  according  to  the  provisions  of 
a  deed  of  settlement  to  be  prepared  and  executed  by 
the  company.  This  deed  of  settlement  provided  for 
the  appointment  of  directors  ;  and  also  contained  the 
following  stipulation  :  "  The  directors  shall  conduct 
and  manage  the  affairs  of  the  company,  and  shall  ex- 
ercise all  the  powers  that  may  be  exercised  by  the 
company  at  large,  and  shall  fulfil  all  the  duties  of  the 
company,  except  such  powers  and  duties  as  are  re- 
served to  general  meetings."  The  secretary,  by  its 
provisions,  was  to  have  the  custody  of  the  seal  of  the 
corporation,  and  of  the  books  ;  and  to  act  under  the 
control  of  the  directors.  It  further  provided  that 
"  contracts  other  than  bills  of  exchange  or  promissory 
notes,  for  the  purchase  of  any  article  the  consideration 
of  which  does  not  exceed  £50,  or  for  any  labor  or 
service  the  duration  or  period  of  which  does  not  ex- 
ceed six  months,  nor  the  consideration-money  £50, 
may  be  entered  into  on  behalf  of  the  company  by  any 
officer  authorized  by  the  directors.  Contracts  for  the 
purchase  or  sale  of  any  article,  or  the  hire  of  any 
labor  or  services,  or  in  respect  of  any  arrangement 

1  37  Eng.  Law  &  Eq.  K.  189. 

[57] 


§  47  •        POWERS    UNDER   THE    CHARTER.  [PART   I. 

with  another  company,  for  the  exercise  of  the  powers 
and  privileges  of  the  said  company,  or  of  any  such 
other  company,  or  otherwise,  in  any  of  the  matters  in- 
cidental lo  the  carrying  on  the  affairs  of  the  said  com- 
pany, may  be  entered  into  on  behalf  of  the  said 
company  by  the  directors ;  but  such  contract  shall  be 
signed  by  at  least  three  individual  directors,  or  shall 
be  sealed  with  the  seal  of  the  company  under  the 
authority  of  the  special  meeting,  or  the  resolution  of 
the  directors,"  and  with  the  further  stipulation  that 
"  all  contracts,  whether  under  seal  or  not,  shall  be  im- 
mediately reported  to  the  secretary."  There  was  no 
express  provision  that  the  contract  should  not  be  bind- 
ing on  the  company  unless  made  in  the  stipulated 
manner. 

§  47.  It  appeared  that  the  telegraph  company  had, 
under  their  corporate  seal,  entered  into  an  agreement 
with  the  plaintiff  for  the  collection  and  transmission  of 
messages  by  its  line ;  the  company  agreeing  to  allow 
him  seven  per  cent  on  the  amount  it  should  receive, 
for  his  services;  while  this  agreement  was  still  con- 
tinuing, the  chairman  of  the  company  made  a  parol 
agreement  with  the  said  plaintiff,  by  which  he  agreed, 
on  the  representations  of  the  plaintiff  that  he  was 
about  to  establish  a  new  line  of  business,  that  plain- 
tiff should  be  allowed  fifty  per  cent  upon  all  messages 
sent  or  received  by  him  through  the  company's  line, 
containing  public  intelligence  ;  and  the  chairman  wrote 
down  the  terms  of  the  agreement  in  the  minute-book 
of  the  company.  Under  this  agreement  the  plaintiffs 
accounts  for  a  part  of  the  service  rendered,  were  sent 
in  from  time  to  time,  based  upon  the  principle  of  this 

[68] 


CHAP.  IV.]        POWERS    UNDER    THE    CHARTER.  §  48 

agreement  of  fifty  per  cent,  and  were  paid,  and  the 
amounts  passed  into  the  company's  books  and  credited. 
The  arbitrator  to  whom  the  case  was  referred  found 
that  the  services  rendered  by  plaintiff  under  this  parol 
agreement  were  beneficial  to  the  company.  This  was 
a  contract  which  exceeded  £50,  and  the  deed  of 
settlement  required  that  it  should  be  signed  by  three 
directors. 

§  48.  It  was  held,  that,  the  parol  agreement  hav- 
ing been  acted  upon  and  ratified  by  the  company,  the 
defendants  were  bound. 

Lord  Campbell,  C.  J.,  said,  that  "  no  reliance  could 
be  placed  upon  the  objection  that  the  defendants 
were  a  corporation,  and  that  the  agreement  on  which 
they  were  sued  was  not  under  seal.  They  were  a 
corporation  for  the  purpose  of  carrying  on  a  particu- 
lar business,  and  the  services  rendered  were  in  the 
direct  course  of  the  business  which  the  charter 
authorized.  The  case  of  Copper  Mines  Co.  v.  Fox,1 
and  Henderson  v.  Australia  Royal  Mail  Nav.  Co.,2 
were  referred  to  and  approved.  Upon  the  -objec- 
tion that  the  contract  was  not  signed  by  three  of 
the  directors,  his  Lordship  said,  "  Assuming  that  the 
contract  was  originally  ultra  vires  of  the  chairman,  we 
think  that  it  has  been  adopted  and  ratified  by  the 
company,  so  as  to  render  them  liable  for  it ;  "  and  that 
"  this  contract  was  not  at  variance,  nor  at  all  incon- 
sistent with  the  previous  contract,  which  was  under 
seal.  Might  not  the  contract  entered  into  by  the 
chairman,  although  originally  without  authority,  and 

1  16  Q.B.  229  (Eng.  Com.  Law  Rep.  vol.  71). 

2  5  E.  &  B.  409. 

[59] 


§  48  .POWERS    UNDER   THE    CHARTER.  [PART  I. 

not  binding,  be  ratified  by  the  company  ?  The  deed 
of  settlement  declares  that  the  directors  shall  conduct 
and  manage  the  affairs  of  the  company,  and  shall 
exercise  all  the  powers  that  may  be  exercised  by  the 
company  at  large.  And  it  appeared  that  the  direct- 
ors were  made  acquainted  with'  the  new  contract,  and 
approved  and  acted  upon  it.  The  entry  in  the  minute- 
book  was  for  their  information,  and  must  have  been 
seen  and  sanctioned  by  them.  The  directors  must 
have  examined  and  approved  the  accounts,  otherwise 
the  payment  which  was  made  to  plaintiff  by  checks, 
and  which  the  directors  were  required  to  draw,  would 
not  have  been  so  made.  It  appeared  that  the  com- 
pany profited  by  the  services  thus  rendered,  and  they 
must  be  considered  as  requesting  the  plaintiff  to  con- 
tinue them."  And  the  company  was  accordingly  held 
liable  to  the  plaintiff  for  the  services  rendered. 


[60] 


CHAP.  V.]  TELEGRAPH    LINES.  §  49 


CHAPTER   V. 


CONSTRUCTION    OF    TELEGRAPH    LINES. 

§  49.  BY  general  statutes,  in  England,  Canada,  and 
most  of  the  States  in  the  United  States,  telegraph 
companies  are  authorized  to  construct  their  lines  along 
and  upon  —  and  in  England,  also  under  —  any  pub- 
lic road  or  highway,  and  across  navigable  streams,  so 
as  not  to  interfere  with  the  public  use  of  the  one,  or 
the  navigation  of  the  other.1 

1  See  Appendix. 

By  the  26  &  27  Vict.(1863)  c.  112,  sec.  9,it  is  provided,  that  telegraph 
companies  shall  not  place  a  telegraph  under  any  street  in  the  metropolis, 
and  large  towns  of  a  population  of  thirty  thousand  inhabitants  or  more, 
without  the  consent  of  the  bodies  having  control  of  the  streets.  The  depth, 
course,  etc.,  of  the  telegraph  lines  under  the  street  must  be  agreed  upon 
between  street  or  road  authority  and  company,  or  else  to  be  determined 
by  justices  or  sheriff. 

Sec.  12  provides  that  the  company  shall  not  place  a  telegraph  over, 
along,  or  across  a  street  or  public  road,  except  with  the  consent  of  the 
body  having  the  control  of  such  street  or  public  road ;  and  where  a  pub- 
lic road  passes  through  or  by  the  side  of  any  park  or  pleasure  ground, 
and  where  a  public  road  crosses  by  means  of  a  bridge  or  viaduct,  or  abuts 
on  any  ornamental  water  belonging  to  any  park  or  pleasure  ground,  and 
where  a  public  road  crosses  or  abuts  on  a  private  drive  through  any  park 
or  pleasure  grounds,  or  to  any  mansion,  the  company  shall  not,  without,  or 
otherwise  than  in  accordance  with,  the  consent  of  the  owner,  lessee,  and 
occupier  of  such  park,  pleasure  grounds,  or  mansion,  place  any  work  above 
ground  on  such  public  road. 

Sec.  13  provides,  where  any  land-owner  or  other  person  is  liable  for  the 
repair  of  any  street  or  public  road  (notwithstanding  that  the  same  is  dedi- 
cated to  the  public),  the  company  shall  not  place  any  work  under,  in,  upon, 

[61] 


§  50  CONSTRUCTION    OF  [PART   I. 

By  far  the  greater  number  of  telegraph  lines  in 
these  countries  are  along  and  upon  or  under  public 
highways  and  railroads ;  and,  probably,  from  the 
very  nature  of  their  construction,  they  will  seek  these 
routes  in  all  countries  which  have  become  populous ; 
and  questions  between  the  owners  of  the  soil  and 
telegraph  companies,  in  reference  to  the  construction 
of  telegraph  lines,  have  been,  and,  it  maybe  expected, 
will  continue  to  be,  of  rare  occurrence. 

§  50.  A  very  interesting  case,1  however,  was  before 
the  Supreme  Judicial  Court  of  Maine,  in  1859,  involv- 
ing the  construction  to  be  placed  upon  a  charter  author- 
izing the  erection  of  telegraph  lines  upon  the  public 
highway,  yet  so  as  not  to  incommode  the  public.  It 
was  an  action  to  recover  damages  for  an  alleged  injury 
to  the  person  of  the  plaintiff.  The  main  facts  were  as 
follows :  The  stage  running  between  Belfast  and  North- 
port,  in  which  the  plaintiff  was  at  the  time  of  the 
accident  a  passenger,  on  arriving  at  the  latter  town, 
turned  off  from  the  usually  travelled  part  of  the 
highway  towards  the  post-office,  to  exchange  letter- 
bags.  A  telegraph  wire  of  the  defendant  corporation, 
hanging  too  low,  caught  the  upper  part  of  the  stage, 
and  was  the  cause  of  its  being  upset,  whereby  the 
plaintiff  was  injured. 


over,  along,  or  across  such  street  or  public  road,  except  with  the  consent 
of  such  land-owner  or  other  person,  in  addition  to  the  consent  of  the  body 
having  the  control  of  such  street  or  public  road,  where,  under  the  act,  such 
last-mentioned  consent  is  required.  Provided,  that  where  the  company 
places  a  telegraph  across  or  over  any  street  or  public  road,  they  shall  not 
place  it  so  low  as  to  stop,  hinder,  or  interfere  with  the  passage,  for  any 
purpose  whatever,  along  the  street  or  public  road. 

1  Sarah  Dickey  t>.  Maine  Telegraph  Co.  4<i  Me.  483. 
[62] 


CHAP.  V.]  TELEGRAPH    LINES.  §  51 

The  judge  presiding  instructed  the  jury  that  high- 
ways are  made  to  accommodate  the  public  travel,  and 
any  person  having  occasion  to  travel  upon  them  is 
not  necessarily  confined  to  the  usually  travelled  path, 
but  may  rightfully  travel  upon  any  part  of  a  highway 
which  is  within  its  limits  or  side  lines,  for  the  purpose 
of  calling  at  post-offices,  stores,  or  dwelling-houses, 
along  the  line  of  the  road,  as  convenience  or  necessity 
may  require,  whenever  such  person  can  do  so  without 
any  want  of  ordinary  care,  and  without  interfering 
with  the  rights  of  other  persons  in  and  upon  the 
highway. 

Also  that  the  defendants  had  no  right  by  their  char- 
ter to  incommode  the  public  travel  by  their  erections ; 
and  if  they  did  so,  or  if  having  made  erections  within 
the  limits  of  the  highway,  in  conformity  with  their 
charter,  they  suffered  the  same  to  get  down  or  out  of 
repair,  and  to  remain  so  after  reasonable  notice  and 
opportunity  to  repair  them,  so  as  to  obstruct  the  pub- 
lic travel,  and  endanger  the  safety  of  travellers  right- 
fully travelling  within  the  limits  of  the  highway,  and 
thereby  rendered  such  highway  unsafe  and  incon- 
venient, then,  if  the  plaintiff,  while  rightfully  travelling 
within  any  portion  of  the  highway,  sustained  injury 
to  her  person  in  manner  as  alleged,  solely  by  "reason 
of  such  obstruction  being  within  the  highway,  the 
defendants  were  liable  for  the  damages  occasioned 
thereby ;  provided  she  has  shown  affirmatively  all  the 
other  facts  which  are  necessary  to  entitle  her  to 
recover. 

§  51.  A  verdict  was  rendered  for  the  plaintiff,  and 
on  appeal,  the  Court  said  (Kent,  J.),  "  The  application 

[63] 


§  51  CONSTRUCTION    OF  [PART  I. 

of  a  few  well-established  principles  to  the  facts  in 
this  case,  will  aid  in  testing  the  correctness  of  the 
rulings  to  which  exceptions  are  taken. 

"  When  a  highway  is  laid  out  and  opened,  all  per- 
sons have  a  right  to  pass  upon  it.  By  the  legal  laying 
out,  and  after  all  the  requirements  of  the  statute  have 
been  complied  with,  the  public  acquires  an  easement 
as  against  the  owners  of  the  land,  which  extends  to 
every  portion  of  the  road,  and  any  person  has  a  right 
to  pass  or  repass,  at  his  own  risk,  over  any  part,  after 
it  is  opened,  and  before  any  work  is  done,  or  any 
travelled  path  made,  and  before  the  liability  of  the 
town  to  make  it  exists.  When  laid  out  and  accepted, 
it  becomes  a  public  highway.1 

"  The  duties  of  the  town  in  relation  to  preparing  the 
way  for  travel  are  distinct  from  and  subsequent  to  the 
laying  out.  The  law  requires  the  town  to  make  and 
keep  in  repair  a  travelled  path,  of  suitable  and  suffi- 
cient width.  It  does  not  require  the  town  ordinarily  to 
make  that  travelled  path  the  whole  width  of  the  road, 
and  towns  will  not  be  liable  for  obstructions  on  the  por- 
tion of  the  highway  not  constituting  the  travelled  path, 
and  not  so  connected  with  it  as  to  affect  the  safety  of 
the  travelled  portion.2 

"  But  the  right  of  travellers  to  use  any  part  of  a  high- 
way, if  they  see  fit,  is  not  restricted  by  the  limitation 
of  the  liability  of  the  town  in  case  of  accident.  A 
person  may  go  out  of  the  beaten  track  at  his  own  risk 
as  between  himself  and  the  town,  and  yet  be  entitled 
to  protection  against  the  unlawful  acts  of  other  per- 

1  State  P.  Kitten',  5  Greenl.  254;  Johnson  ».  Whitefield,  18  Me.  286. 
•  Bryant  v.  Biddeford,  39  Me.  193. 
[64] 


CHAP.  V.]  TELEGRAPH    LINES.  §  51 

sons  or  corporations.  Any  part  of  the  highway 
may  be  used  by  the  traveller,  and  in  such  direction  as 
may  suit  his  convenience  or  taste.1 

"  No  person  has  a  right  to  place  or  cause  any  ob- 
struction which  interferes  with  this  right  on  any  part 
of  the  highway  within  its  exterior  limits.  The  extent 
of  the  liability  of  the  town  is  no  measure  for  such 
private  person's  liability.  If  the  owner  of  the  fee  in 
the  land,  or  any  other  person,  should  dig  a  pit  or 
stretch  a  cord  or  place  a  pile  of  stones  on  the  high- 
way near  the  outer  limit,  and  at  a  considerable  dis- 
tance from  the  travelled  way,  and  a  traveller  passing, 
using  due  care,  should  be  injured  thereby,  it  would  be 
no  sufficient  answer  to  his  claim  for  damages,  to  aver 
and  prove  that,  under  the  circumstances,  the  town  was 
not  liable.  The  duty  of  the  town  is  to  perform  a 
positive  act  in  the  preparation  and  preservation  of  a 
sufficient  travelled  way.  The  duty  of  others  is  to 
abstain  from  doing  any  act  by  which  any  part  of  the 
highway  would  become  more  dangerous  to  the  travel- 
ler than  in  a  state  of  nature,  or  than  in  the  state  in 
which  the  town  has  left  it. 

"  It  may  be  true  that  in  many  cases  the  same  prin- 
ciples will  be  applied  both  to  towns  and  individuals, 
in  determining  whether  a  given  state  of  facts,  in  rela- 
tion to  a  particular  incumbrance,  constitutes  a  defect 
within  the  meaning  of  the  law.  But,  admitting  the 
defect,  the  question  of  liability,  for  creating  or  allow- 
ing it,  may  require  for  its  solution  the  application  of 
very  different  principles  in  a  case  against  a  private 
person  from  those  which  would  apply  to  a  town. 

1  Stinson  v.  Gardiner,  42  Maine,  254. 

6  [65] 


§  51  CONSTRUCTION    OF  [PART  I. 

"  We  think  that  the  instructions  of  the  presiding 
Judge,  in  relation  to  the  rights  of  all  persons  to  travel 
on  any  part  of  the  highway,  and  to  leave  the  usually 
travelled  path,  for  the  purpose  indicated,  were  entirely 
correct,  as  applied  to  this  case  between  an  individual 
and  a  corporation  other  than  a  town.  Any  other  con- 
struction would  deprive  a  traveller  of  a  legal  right  to 
turn  out  of  the  beaten  track,  to  avoid  defects,  or  to 
call  at  houses,  stores,  or  fields.  If  he  has  not  such 
legal  right,  then,  as  against  the  owner  of  the  fee  in 
the  land  over  which  the  highway  is  located,  he  would 
be  a  trespasser.  The  only  right  which  the  public  has, 
is  to  pass  and  repass.  A  horseman  cannot  stop  to 
allow  his  horse  to  graze,  without  being  a  trespasser.1 
If,  when  he  has  turned  from  the  usual  travelled  path, 
he  is  not  rightfully  travelling  over  the  spot,  he  can 
claim  no  damages  against  an  individual  who  has  wil- 
fully placed  obstructions  or  impediments  on  that  part 
of  the  highway.  If  he-  has  a  legal  right  to  be  there, 
then  the  individual  wrong-doer  may  be  responsible, 
though  the  town  may  not  be. 

"  The  defendants  invoke  the  provisions  of  their 
charter,  and  contend  that,  by  its  terms,  they  are  ex- 
empted from  all  liability  for  any  defect  or  neglect 
outside  of  the  travelled  way,  and  that  they  stand 
in  the  same  condition  as  the  town.  The  charter,  §  2, 
authorizes  the  company  to  '  locate  and  construct  its 
line  along  and  upon  any  highway  ...  by  the  erec- 
tion of  the  necessary  fixtures,  including  posts,  piers, 
or  abutments,  for  sustaining  the  wires  or  conductors 
of  such  line,  but  the  same  shall  not  be  so  constructed 

1  Stinson  v.  Gardiner,  42  Maine,  254. 
[66] 


CHAP.  V.]  TELEGRAPH   LINES.  §  51 

as  to  incommode  the  public  use  of  said  roads  or 
highways.' 

"  The  defendants  contend  that  the  *  public  use  of  the 
highway  is  the  right  which  the  great  public  owns,  in 
distinction  from  the  private  rights  which  individuals 
have  of  passing  out  of  the  travelled  path.'  We  can- 
not concur  in  this  view.  The  public  use  of  the  high- 
way is  the  right  which  has  been  before  defined ; 
viz.,  the  right  of  any  and  all  persons  to  use  the  high- 
way, to  pass  and  repass,  at  their  pleasure,  on  any 
part.  It  is  not  confined  to  that  portion  which  the 
town  is  by  law  compelled  to  make  and  keep  in 
repair. 

"  It  is  very  clear  that  this  company  could  not  legally 
erect  posts  a  foot  only  in  height,  and  extend  the 
wires  at  that  distance  from  the  ground,  on  the  exterior 
limits  and  outside  of  the  travelled  path,  if,  by  so 
doing,  the  use  of  any  part  of  the  highway  was  ob- 
structed, or  rendered  inconvenient  and  dangerous,  or 
the  traveller  incommoded.  If  any  injury  should 
arise  to  any  such  legal  traveller  by  such  erection,  he 
using  due  care,  the  company  would  be  liable  to  him. 
The  same  rule  will  apply,  when,  after  erections  prop- 
erly made,  they  suffer  the  same  to  fall  down,  or  to 
be  out  of  repair,  and  to  remain  so  after  reasonable 
notice,  so  as  to  obstruct  the  traveller,  and  endanger 
his  safety." 

The  same  doctrine  is  enunciated  here  as  in  the 
case  of  Rex  v.  United  Kingdom  Telegraph  Co.,  to 
which  we  have  heretofore  made  reference.1 

The  same  principle  is  announced  in  the  case  of 

1  Ante,  c.  1,  §  13,  n.  2. 

[67] 


§  52  CONSTRUCTION    OF  [PART    I. 

Young  v.  Inhabitants  of  Yarmouth,1  although  that 
case  was  upon  the  liability  of  the  town.  The  Cape 
Cod  Telegraph  Company  operated  its  line  under  a 
similar  restriction  upon  constructing  its  line  so  as  not 
to  incommode  the  public  in  the  use  of  the  highway. 

The  posts  were  placed  within  the  limits  of  the 
highway,  between  the  sidewalk  and  the  travelled 
part  of  the  highway,  which  was  in  good  repair:  the 
plaintiff  was  thrown  from  his  carriage  against  one  of 
the  posts;  and  he  brought  this  action  against  the 
town. 

The  line  of  posts  was  erected  at  the  place  on  the 
street  prescribed  by  the  selectmen  of  the  town  under 
the  statute.  It  was  held,  that  the  action  of  the  select- 
men relieved  the  town  from  liability.2 

The  Court  held,  that  if  the  provision,  that  "  the 
same  "  (the  telegraph  line)  "  shall  be  so  constructed 
as  not  to  incommode  the  public  use  of  the  highway  " 
had  been  the  entire  provision  contained  in  the  stat- 
ute, it  might  have  warranted  the  instruction,  that  if 
the  telegraph  posts  were  erected  in  such  a  manner  as 
to  be  an  obstruction,  the  town  would  be  liable ;  and 
adds,  "  The  authority  given  the  telegraph  companies 
thus  to  operate  upon  the  public  highways  would  have 
been  strictly  limited  to  the  cases  provided  in  the 
statute  ;  and  whether  the  posts  were  improperly  placed, 
might  have  been  a  question  for  the  jury." 

§  52.  It  seems,  therefore,  that  in  questions  arising 
upon  a  case  of  alleged  interference  with  the  right  of 
the  public  to  the  use  of  the  highway,  either  as  affect- 

1  9  Gray,  386. 

s  This  was  subsequently  changed  by  statute.    See  Appendix  S. 
[68] 


CHAP.  V.]  TELEGRAPH   LINES.  §  53 

ing  the  public  or  an  individual,  it  is  no  defence  for 
the  company  that  its  posts  are  placed  outside  of  the 
beaten  track  or  travelled  way ;  that  the  public,  and 
each  individual  composing  that  public,  have  the  right 
to  the  use  of  the  highway  to  its  exterior  limits,  and 
the  company  is  liable  for  any  defective  construction  of 
the  line  which  would  amount  to  an  obstruction  of  its 
use,  upon  any  part  of  it,  to  the  same  extent,  to  which 
they  would  be  liable  for  an  obstruction  upon  the  trav- 
elled part  of  the  highway. 

§  53.  In  the  case  of  Telegraph  Co.  v.  Wilt,1  the 
company  was  authorized  by  the  act  of  incorporation 
to  construct  works  along  and  across  any  road,  etc. ;  the 
said  works  to  be  so  placed  as  not  to  interfere  with  the 
common  use  of  such  roads.  There  was  a  section  in 
the  act  which  authorized  the  recovery  of  a  penalty  of 
one  hundred  dollars  "  against  any  person  who  shall 
wilfully  and  knowingly  break  the  wire,"  together  with 
all  damages  which  may  be  sustained  in  repairing  the 
injury,  and  from  the  interruption  of  their  business,  to 
be  recovered  in  an  action  of  trespass.  One  of  the 
company's  wires  crossed  Broad  Street,  and  the  defend- 
ant, having  occasion  to  move  a  house  along  this  street 
struck  the  wire  and  broke  it. 

It  was  held,  that  the  act  of  the  defendant  in  moving 
the  house  was  lawful ;  that  he  had  the  right  to  the 
use  of  the  highway  for  his  lawful  business  usque  ad 
ccelum.  It  would  not  be  held  that  the  legislature 
intended  to  restrict  this  common  right  unless  very 
express  words  were  used  to  that  effect. 

1  11  American  Law  Journal,  374.  Decision  by  Philadelphia  District 
Court. 

[69] 


§  54  CONSTRUCTION    OF  [PART  I. 

The  company  therefore  were  subject  to  the  contin- 
gency of  such  use  of  the  highway,  if  care  had  not 
been  taken  to  place  their  wires  so  as  to  avoid  it.1 

§  54.  The  right  of  municipal  corporations  to  control 
the  location  of  telegraph  lines  and  posts  upon  and 
along  the  streets  is  expressly  conferred  by  the  Tele- 
graph Act  of  1863,  26  &  27  Viet.  c.  112  (which 
provides,  however,  for  the  ultimate  action  of  the 
Board  of  Trade),  and  also  by  general  statutes  in  sev- 
eral of  the  American  States. 

Under  the  provisions  of  these  various  statutes,  the 
telegraph  companies  must  be  governed  by  such  regu- 
lations and  rules  as  these  municipal  bodies  may  pre- 
scribe ;  and  they  are  authorized  to  direct  any  altera- 
tion in  the  location  of  the  lines,  position  of  the  posts, 
etc.,  and  the  height  at  which  the  wires  shall  run.2 

Independent  of  express  statutory  authority,  we 
think  municipal  corporations  would  have  the  right  to 
regulate  the  construction  of  telegraph  lines  along 
and  upon  or  under  its  streets ;  determining  the 
place  where  the  posts  should  be  erected,  and  the 
height  at  which  the  wires  should  be  placed  ;  and  to 

1  This  seems  to  be  a  severe  ruling  against  telegraph  companies ;  and 
there  might  be  some  plausibility  in  the  argument,  that  the  use  of  the  high- 
way mentioned  in  the  statute  was  the  ordinary  and  usual  mode  of  passing 
and  repassing  on  foot,  and  on  horseback,  and  in  vehicles,  and  was  not  in- 
tended to  embrace  such  extraordinary  use  of  the  same  as  that  in  the  case 
given  in  the  text ;  but  still,  the  question  would  recur,  was  the  moving  of 
the  house  along  the  highway  a  lawful  use  of  the  same  ?  If  so,  the  company 
could  have  no  redress  for  an  injury  to  its  wires,  but  would  be  liable  for  the 
obstruction ;  and,  more  especially,  as  the  construction  of  the  statute  must 
be  made  most  strongly  against  the  company  in  all  cases  of  interference 
with  what  had,  before  the  granting  of  the  franchise  to  the  company,  been 
a  right  in  the  individual  or  the  public. 

»  See  Appendix  A,  G,  S,  CC. 
[70] 


CHAP.  V.l  TELEGRAPH   LINES.  &  55 

_1  O 

direct  at  any  time  any  alteration  in  the  same  as  the 
public  necessity  or  convenience  might  require. 

This  right  they  could  exercise  under  their  general 
police  power ;  and  it  would  be  their  duty  so  to  do. 
They  would  be  liable  to  any  party  injured  for  any 
obstruction  of  the  streets  by  individuals  or  incorpora- 
ted companies.1 

§  55.  But  where  the  statute  provided  that  selectmen 
should  specify  in  writing  where  the  posts  were  to  be 
located,  and  that  the  company  in  constructing  its  line 
shall  follow  the  route  indicated  by  such  writing,  and 
that,  "  after  the  erection  of  said  lines,  the  selectmen 
shall  have -power  to  direct  any  alteration  in  the  loca- 
tion or  erection  of  said  posts,"  it  is  held,  that  in  such 
case  the  selectmen  are  not  the  agents  of  the  town, 
but  of  the  public  generally ;  and  the  town  is  not  liable 
for  any  damage  sustained  by  the  erection  of  the  posts 
in  the  place  prescribed  by  the  selectmen,  but  the  loca- 
tion of  the  telegraph  posts  by  the  selectmen  was  con- 
clusive upon  all  parties.  "  The  town  cannot  interfere 
and  remove  them  ;  and  their  existence  upon  the  high- 
way if  in  exact  conformity  with  the  regulations  pre- 
scribed by  the  selectmen,  does  not  constitute  any 
defect  or  want  of  repair  in  the  highway  for  which 
the  town  can  be  held  responsible  in  case  of  any  in- 
jury thereby  occasioned  to  any  person  travelling  on 
such  highway.  If  an  improper  location  of  the  tele- 
graph posts  has  been  allowed  by  the  selectmen  of 
the  town,  the  power  is  fully  vested  in  these  select- 
men to  direct  an  alteration  in  such  location,  and  thus 
obviate  any  inconvenience  that  may  be  found  to  exist 

1  See,  on  this  subject,  Sarah  Dickey  v.  Maine  Teleg.  Co.  46  Me.  483. 

[71] 


§  56  CONSTRUCTION    OF  [PART   I. 

to  the  traveller,  or  the  public  generally.  But  this  is 
not  a  matter  which  the  town  in  its  corporate  capacity 
can  regulate,  or  for  which  the  town  is  responsible."  ] 

§  56.  There  seems  to  be  no  provision  made  in  the 
general  laws  on  the  subject  of  telegraphs  in  Canada 
or  any  of  the  American  States,  except  in  the  State  of 
Michigan,2  for  laying  telegraph  wires  under  streets, 
roads,  etc. ;  and  it  may  be  doubted  whether  telegraph 
companies  would  possess  such  right  in  the  construction 
of  their  lines,  without  statutory  authority,  either  ex- 

1  Young  v.  Inhabitants  of  Yarmouth,  9  Gray,  386. 

This  decision  led  to  the  passage  of  an  act  by  the  legislature  of  Massa- 
chusetts, fixing  the  liability  of  towns  in  such  cases.  The  act  is  as  fol- 
lows :  — 

Towns  which  may  be  otherwise  liable  in  damages  to  any  person  for 
injury  to  his  person  or  property  occasioned  by  telegraph  posts  or  other 
fixtures  erected  on  highways  or  townways,  shall  not  be  deemed  to  be  dis- 
charged from  such  liability  by  reason  of  the  place  of  erection  of  said  posts, 
or  other  fixtures,  having  been  designated  by  the  selectmen  of  such  towns, 
in  virtue  of  the  act  to  which  this  is  an  addition,  or  by  reason  of  any  thing 
in  said  act  contained. 

The  companies  or  persons  erecting  such  telegraph  posts  or  fixtures, 
or  to  whom  they  may  belong,  shall  be  held  to  re-imburse  and  repay  to  said 
towns  the  full  amount  of  damages  and  costs  recovered  as  aforesaid,  by  any 
party  injured.  Act  of  April  6,  1859,  General  Statutes  of  Massachusetts, 
c.  260,  §§  1,  2.  Appendix  S. 

*  The  statute  provides  that  "  such  association  is  authorized  to  enter 
upon  and  construct  and  maintain  lines  of  telegraph  through,  along,  and 
upon  any  of  the  public  roads  and  highways,  or  across  or  under  any  of 
the  waters  within  the  limits  of  this  State,  by  the  erection  of  the  necessary 
fixtures,  including  posts,  piers,  or  abutments,  for  sustaining  the  cords  or 
wires  of  such  line.  .  .  .  The  association,  instead  of  running  or  placing  their 
wires  or  posts,  may,  if  they  choose,  run  or  place  the  same  under  ground, 
with  a  suitable  or  proper  covering  for  the  protection  of  the  same ;  and  any 
part  of  this  act,  or  any  law  made  or  to  be  made  providing  for  the  appraise- 
ment of  damages  to  any  person,  injured  by  the  construction  or  maintenance 
of  such  line  or  lines,  shall  be  construed  to  include  damages  occasioned  by 
the  construction  of  said  lines  under  ground,  as  provided  by  this  act" 
Laws  of  Michigan,  1863  (No.  240),  §  5.  Appendix  T. 
[72] 


CHAP.  V.]  TELEGRAPH   LINES.  §  56 

pressly  given,  or  necessarily  implied  in  the  language 
employed  designating  the  mode  of  construction. 

In  England,  the  right  is  expressly  given  by  statute, 
subject  to  the  conditions  and  limitations  therein  pro- 
vided. The  act  is  known  as  the  Telegraph  Act  of 
1863,  26  &  27  Viet.  c.  112.1 

1  This  act  provides  that  for  the  purpose  of  laying  the  wires  under  the 
soil,  the  telegraph  company  may  open  or  break  up  any  street  or  public 
road,  and  alter  the  position  of  any  pipe  (not  being  a  main)  for  the  supply 
of  water  or  gas. 

They  may  also  place  their  telegraph  under,  along,  and  across  any 
land  or  building,  railway,  canal,  or  any  estuary  or  branch  of  the  sea,  or 
shore  or  bed  of  any  tide  water,  and  may  alter  or  remove  t.he  same ;  and 
shall  construct  their  lines  so  as  to  do  as  little  damage  as  may  be ;  and  shall 
make  compensation  for  all  damage. 

The  act  gives  in  detail  the  mode  of  proceeding  when  the  company 
propose  to  make  any  alteration  in  their  works ;  they  must  also  obtain  the 
consent  of  the  bodies  having  control  of  the  streets,  in  order  to  construct 
their  lines  under  such  street ;  and  shall  also  obtain  the  consent  of  the 
bodies  having  control  of  the  sewerage  and  drainage.  In  case  the  consent 
is  not  given,  the  act  provides  how  the  differences  shall  be  settled  between 
such  bodies  and  the  company.  The  company  is  required  to  give  notice 
of  their  intention  to  break  up  the  street  or  public  road  for  the  purpose  of 
constructing  their  line. 

In  laying  such  underground  work,  the  company  is  required  with  all 
convenient  speed  to  restore  the  street  or  road  to  its  former  condition ; 
and  while  the  work  is  progressing,  they  must  have  that  part  of  the  road 
fenced  and  guarded,  and  pay  all  expenses  occasioned  by  such  under- 
ground construction  for  six  months  after  completion  of  the  work  ;  and, 
for  failure  to  comply,  are  liable  to  penalties.  Provision  is  also  made  with 
reference  to  non-interference  with  the  traffic  and  travel  on  said  road 
while  the  work  is  progressing. 

Where  the  company  has  constructed  any  work  along,  upon,  or  over 
any  lands  or  buildings,  or  on  or  along  any  street  or  road  adjoining  such 
land  or  building,  and  any  person  having  an  interest  in  the  land  or  build- 
ing desires  to  use  such  land  or  building  in  any  manner  different  from  the 
mode  in  which  it  was  used  when  the  line  was  constructed,  and  with  which 
the  line  of  the  company  will  interfere,  he  may  require  the  company  to 
remove  or  alter  their  work  so  that  it  will  not  interfere  with  the  new  use 
intended  to  be  made  of  the  land  or  building ;  but  this  alteration  or  removal 
cannot  be  required  where  a  grant  or  consent  in  writing  had  been  pre- 

[73] 


§  58  CONSTRUCTION    OF  [PART   I. 

§  57.  The  construction  of  the  line  must  be  between 
the  terminal  stations  specified  in  the  charter,  or,  if 
•operated  under  the  provisions  of  general  law,  such  as 
may  be  specified  in  the  articles  of  association,  or  such 
other  mode  of  organization  as  may  be  required  by 
the  general  law. 

It  would  seem,  if  there  be  no  express  provision 
fixing  the  terminus,  that  a  reasonable  discretion  may 
be  exercised  by  the  company  in  selecting  it. 

And  so  as  to  intermediate  points  along  the  route, 
when  they  are  not  definitely  designated.1 

§  58.  Where  the  charter  provides  for  the  construc- 
tion of  the  telegraph  line  between  certain  termini, 
the  line  might  be  constructed  along  a  highway  be- 

viously  given  to  the  company,  by  the  owner,  lessee,  or  occupier,  or  the 
person  under  whom  they  claimed,  to  construct  the  line. 

Where  the  owner  of  the  land  adjoining  the  street  or  road  considers 
his  land  to  be  prejudicially  affected  by  the  construction  of  telegraph  lines 
under  or  upon  or  along  the  street  or  road,  he  may  give  the  company 
notice,  requiring  it  to  alter  or  remove  the  work  in  accordance  with  the 
notice ;  then  the  company  must  either  alter  or  remove  the  work,  or  give 
the  owner  a  counter-notice,  and  the  matter  thereupon  comes  before  the 
Board  of  Trade  for  adjustment. 

The  Board  is  required  to  order  its  removal  if  prejudicial  to  the  owner, 
provided  such  removal  or  alteration  can  be  effected  so  as  not  to  interfere 
with  the  efficient  working  of  the  line.  Such  alteration  or  removal  cannot 
be  claimed  where  the  owner,  or  the  assignee  of  the  owner,  demanding 
the  alteration  or  removal,  has  granted  the  right  to  construct  the  line,  or 
given  his  consent  in  writing. 

In  the  construction  of  lines  under  or  along  or  upon  or  across  canals 
or  railroads,  it  requires  the  consent  of  the  parties  having  the  control  of  the 
same.  There  is  also  special  provision  with  reference  to  interference  with 
stocks,  basins,  or  other  works  adjoining  or  connected  with  canals,  etc. 

In  matters  to  be  determined  by  the  Board  of  Trade,  the  Board  may 
have  a  reference  to  arbitrators.  See  Appendix  A. 

1  Hentz  v.  Long  Island  R.R.  Co.  13  Barb.  646;   Newcastle  &  Rich- 
mond R.R.  Co.  v.  Penn.  &  Ind.  R.R.  Co.  3  Ind.  464;    Commonwealth  v. 
Fitchburg  R.R.  Co.  8  Cush.  240. 
[74] 


CHAP.  V.]  TELEGRAPH    LINES.  §  59 

tween  the  termini,  although  no  express  authority  was 
given  so  to  do ;  provided  it  appeared  that  no  other 
location  of  the  line  was  practicable ;  such  authority 
would  be  claimed  by  necessary  implication  in  applying 
the  act  to  the  subject-matter.1 

The  authority  to  construct  lines  between  two  dis- 
tant points  would  carry  with  it  the  right  to  establish 
intermediate  stations,  where  the  establishment  of  such 
stations  was  conducive  to  the  main  purpose  contem- 
plated by  the  charter.2 

§  59.  It  is  a  general  rule  applicable  to  all  works  of 
this  character,  in  which  private  property  may  be 
taken  for  public  use,  that  the  work  shall  be  constructed 
with  the  least  damage  that  the  nature  of  the  case  will 
admit  of. 

As  we  have  seen,  where  the  termini  and  the  inter- 
mediate points  have  not  been  definitely  fixed  by  the 
charter,  a  reasonable  discretion  will  be  allowed  to  the 
company  in  selecting  them ; 3  but,  having  once  made 

1  Springfield  v.  Conn.  River  R.R.  Co.  4  Cush.  63  ;  White  River  Turn- 
pike Co.  v.  Ver.  Cen.  R.R.  Co.  21  Vt.  R.  590. 

2  Cother  v.  Midland  Railway  Co.  2  Phillips,  469.  The  Lord  Chancellor 
construed  the  Railway  Clauses  Construction  Act,  and  observed,  "  The 
term  '  railway '  by  itself  includes  all  works  authorized  to  be  constructed ; 
and  for  the  purpose  of  constructing  the  railway,  the  company  are  author- 
ized to  construct  such  stations  and  other  works  as  they  may  think  proper ; 
and  assuming  that  the  lands  authorized  to  be  compulsorily  taken  would 
be  taken  and  used  for  all  ordinary  stations  and  works,  the  act  provides, 
that,  for  certain   extraordinary  purposes,  such  as  additional  stations  and 
conveniences,  this  railway  may  purchase  certain  additional  quantities  of 
land.     I  consider  that  all  land  authorized  to  be  taken  as  necessary,  in  the 
terms  of  the  act,  for  the  purpose  of  making  and  maintaining  the  rail- 
way and  works,  is  liable  to  be  taken,  whether  for  the  actual  line  of  the 
railway,  or  for  stations  or  other  conveniences  necessary  for  the  working 
of  the  railway." 

3  Ante,  §  57. 

[75] 


§  59  CONSTRUCTION    OF  [PART    I. 

the  selection,  and  located  their  line,  there  is  no  power 
to  re-locate,  and  for  that  purpose  to  occupy  the  land 
of  another,  or  the  public  highway.1 

Where  the  right  of  deviation,  or  of  changing  the 
location,  is  given,  as  we  have  seen,  it  must  be  strictly 
construed.2 

1  Morehead  v.  Little  Miami  R.R.,  1 7  Ohio,  340 ;  Louisville  &  Nash- 
ville Branch  Turnpike  Co.  v.  Nashville  &  Kentucky  Turnpike  Co.  2 
Swan,  282 ;  Blackmore  v.  Glamorganshire  Canal  Co.  1  My.  &  K.  154 ; 
Turnpike  Co.  v.  Hosmer,  12  Conn.  R.  364.  See  authorities  cited  ante, 
§  42,  note  1. 

8  Ante,  c.  4,  §§  42,  43. 

The  Revised  Code  of  Mississippi  (1857),  c.  35,  art.  8,  provides  that 
"  Charters  for  telegraph  companies  shall  describe  the  line  they  propose 
building  and  constructing,  and  the  localities  it  is  intended  to  traverse." 
Appendix  V.  The  California  act  of  April  22,  1850,  concerning  corpora- 
tions, c.  6,  §  147,  provides  that  the  association  shall  specify  in  their  certifi- 
cate "  the  general  route  of  the  line  or  lines  of  telegraph,  designating  the 
points  to  be  connected."  There  is  a  similar  provision  in  the  statutes  of 
Connecticut,  New  Jersey,  Ohio,  Virginia,  Wisconsin,  New  York,  Mary- 
land, Illinois,  Kansas,  Nevada,  and  Colorado.  By  the  Florida  statute  the 
certificate  shall  specify  "  the  points  in  the  State  from  and  to  and  through 
•which  the  said  lines  are  to  be  extended."  Laws  of  Florida,  c.  781,  §  1. . 
By  statute  of  Massachusetts,  selectmen  are  to  designate  the  locality  of  the 
lines.  Supplement  of  1854  to  the  Revised  Statutes,  c.  93,  §  3.  There  is 
a  similar  provision  in  the  statute  of  Vermont. 

By  the  Revised  Statutes  of  Missouri,  the  power  to  designate  the  local- 
ity of  the  lines,  and  to  direct  any  change  or  alteration  of  the  same,  is 
vested  in  the  Mayor  and  Aldermen  of  any  city,  or  the  trustees  of  any  in- 
corporated town.  R.S.  c.  156,  §  3. 

By  the  Consolidated  Statutes  of  Canada,  c.  67,  §  8,  the  association  is 
authorized  to  construct  the  line  designated  in  the  certificate  upon  any  land 
purchased  by  the  association,  or  when  the  right  has  been  conceded  to  them, 
and  upon  the  highways  and  across  the  waters  of  the  Province,  so  as  not  to 
incommode  the  public,  or  impede  the  free  access  to  any  house  or  building 
erected  in  the  vicinity  of  the  same,  or  to  interrupt,  injuriously,  the  naviga- 
tion of  such  waters ;  and  that  nothing  contained  in  the  act  should  confer 
on  the  association  the  right  of  building  a  bridge  over  any  navigable  stream. 
Appendix  S. 

This  last  provision  is  embodied  in  the  statutes  of  many  of  the  Ameri- 
can States. 
[76] 


CHAP.  V.]  TELEGRAPH    LINES.  §  60 

§  60.  In  some  of  the  States,  express  authority  is 
given  to  telegraph  companies  to  erect  their  posts  and 
establish  their  lines  along  and  upon  the  bed  of 
railways,  but  in  such  manner  as  not  to  prejudice  the 
rights  of  railway  companies.1 

In  many  of  the  States,  telegraph  companies  are 
authorized  to  construct  their  lines  across  navigable 

By  act  of  Congress,  U.S.,  of  July  24,  1866,  it  is  provided  that  any 
telegraph  company  then  organized,  or  thereafter  to  be  organized,  under 
the  laws  of  any  State  in  the  Union,  should  have  the  right  to  construct, 
maintain,  and  operate  lines  of  telegraph  through  and  over  any  portion  of 
the  public  domain  of  the  United  States,  over  and  along  any  of  the  military 
or  post  roads  of  the  United  States  which  had  already  been,  or  might  there- 
after be,  declared  such  by  act  of  Congress,  and  over,  under,  or  across  the 
navigable  streams  or  waters  of  the  United  States,  but  to  be  so  constructed 
as  not  to  obstruct  the  navigation  of  such  streams  or  waters,  or  interfere  with 
the  ordinary  travel  on  such  roads ;  with  the  right  to  take  and  use  from 
such  public  lands  all  necessary  material  for  its  posts,  piers,  stations,  and 
other  needful  uses  in  the  construction,  maintenance,  and  operation  of  its 
line,  and  might  pre-empt  and  use  such  portion  of  the  unoccupied  public 
lands,  subject  to  pre-emption,  as  may  be  necessary  for  its  stations,  not  ex- 
ceeding forty  acres  for  each  station,  but  such  stations  not  to  be  within 
fifteen  miles  of  each  other. 

It  is  provided  that  before  any  telegraph  company  can  exercise  any  of 
the  powers  or  privileges  contained  in  the  act,  they  shall  file  their  written 
acceptance  with  the  Postmaster-General,  of  the  certain  restrictions  and 
obligations  contained  therein.  See  Appendix  D. 

1  Statutes  of  Ohio,  1852,  §  3,  with  the  proviso  that  nothing  in  the  act 
shall  be  so  construed  as  to  authorize  any  telegraph  company  to  condemn 
the  use  of  the  track  or  rolling  stock  of  any  road,  for  the  purpose  of  trans- 
porting poles,  materials,  or  employees  of  such  telegraph  company,  or  for 
any  purpose  whatever. 

Statutes  of  Vermont,  Revision  of  1863,  c.  88,  §  7,  which  requires,  how- 
ever, that  license  to  erect  the  posts  shall  first  be  had  of  such  railroad 
company,  by  vote  of  the  board  of  directors,  or  consent  of  the  Superin- 
tendent. Sec.  8  protects  the  telegraph  line  from  liability  to  seizure  upon 
execution  or  attachment  process  against  the  railroad  company  ;  nor  shall 
it  be  deemed  to  pass  by  any  sale,  transfer,  or  mortgage,  which  the  rail- 
road company  may  have  made  before,  or  might  make  after,  the  erection 
of  the  line. 

[77] 


§  60  TELEGRAPH    LINES.  [PART  I. 

streams,  but  with  the  express  exclusion  of  any  right 
to  erect  bridges  over  such  streams.1 

1  Such  is  the  provision  in  Michigan,  California,  Massachusetts,  Con- 
necticut, Wisconsin,  Maryland,  Missouri,  and  probably  other  States.  See 
Appendix  F,  G,  R,  S,  T,  W,  LL. 


[78] 


CHAP.  VI.]    LIABILITY    OF    TELEGRAPH    COMPANIES.       §  62 


CHAPTER  VI. 

LIABILITY  EX  DELICTO  OF  TELEGRAPH  COMPANIES  ;  AND 
INJURIES  TO  TELEGRAPHS  MADE  CRIMINAL  BY  STAT- 
UTE. 

§  61.  INCORPORATED  telegraph  companies  are  liable 
for  torts,  upon  the  same  principle  which  determines 
the  liability  of  individuals. 

This  liability  may  be  enlarged  by  statute.  Such 
enlarged  liability  may  be  imposed  by  the  charter 
under  which  the  company  operates  its  line,  or  by 
general  statute  applicable  alike  to  all  telegraph  com- 
panies. 

In  most  of  the  American  States,  and  also  in  Eng- 
land, penalties  are  imposed  for  the  violation  of  many 
of  the  statutory  requirements,  as  we  shall  hereafter 
see.1 

§  62.  The  obligations  which  rest  upon  telegraph 
companies  in  their  relation  to  the  public,  springing, 
as  they  do,  out  of  the  public  nature  of  their  employ- 
ment, are  co-extensive  with  the  objects  and  purposes 
of  the  work  which  they  propose  to  do. 

They  are  liable  for  all  breaches  of  a  general  public 
duty,  whereby  special  damage  has  accrued  to  an  indi- 
vidual, and  it  is  not  necessary  that  any  privity  of  con- 
tract should  exist  between  the  company  and  the 

1  See  post,  part  2,  c.  9. 

[79] 


§  64  LIABILITY    OF    TELEGRAPH    COMPANIES  ;    [PART  I. 

individual,  in  order  to  authorize  an  action  for  the 
injury. 

To  sustain  such  action,  however,  the  individual  must 
in  all  cases  show  special  damage  sustained  by  him  ; 
and  it  is  not  sufficient  that  the  injury  complained  of 
is  suffered  by  him  in  common  with  all  other  persons. 

§  63.  Telegraph  companies  are  under  the  obliga- 
tions of  a  public  duty,  even  where  there  is  no  special 
requirement  by  statute  to  that  effect,  to  keep  their 
lines  in  proper  state  of  repair,  and  to  have  them  so 
constructed  as  not  to  interfere  with  the  rights  of 
others;  and  are  liable  for  all  injuries  caused  by  the 
bad  or  unsafe  condition  of  their  lines  ;  as,  where  the 
plaintiff  being  a  passenger  in  a  stage-coach,  and  the 
coach  coming  in  contact  with  the  wire  of  defendants' 
line,  which  was  hanging  too  low,  by  reason  of  which 
the  coach  was  overturned,  causing  bodily  injury  to  the 
plaintiff,  she  was  held  entitled  to  recover,  in  an  action 
for  damages  against  the  telegraph  company ;  it  ap- 
pearing that  she  was  rightfully  travelling  upon  the 
highway  where  the  injury  occurred.1 

The  statute,  in  this  case,  under  which  the  telegraph 
company  operated  its  line,  required  that  the  same 
should  be  so  constructed  upon  the  public  highway  as 
not  to  incommode  the  public  in  its  use  ;  but,  without 
doubt,  the  same  obligation  would  have  rested  upon  the 
company,  and  the  same  liability,  ex  delicto,  to  the  in- 
dividual, had  there  been  no  such  provision  in  the 
statute. 

§  64.  But  whenever  it  appears  that  the  negligence 
of  the  plaintiff  contributed  to  the  injury  complained  of, 

1  Sarah  Dickey  v.  Maine  Telegraph  Co.  46  Maine  R.  483. 
[80] 


CHAP.  VI.]       AND    INJURIES    TO    TELEGRAPHS.  §  64 

the  company  would  not  be  liable,  and  the  burden  of 
proof  is  upon  the  plaintiff  to  show  due  care  and  vigi- 
lance on  his  part. 

Thus,  where  the  wires  of  a  telegraph  company 
"  became  slack  and  drooped  so  low"  that  the  carriage 
in  which  the  plaintiff  was  riding  could  not  pass 
under  it,  whereby  the  carriage  was  overturned  and 
the  plaintiff  injured,  it  was  held,  that  it  was  not  suffi- 
cient for  a  recovery  that  the  plaintiff  had  proved  the 
defendant,  the  telegraph  company,  were  at  fault.  If 
the  negligence  or  rashness  or  Avant  of  ordinary  care, 
on  the  part  of  the  plaintiff,  concurred  in  producing 
the  injury,  there  could  be  no  recovery,  and  the  burden 
of  proof  was  on  the  plaintiff  to  show,  affirmatively, 
the  exercise  of  proper  care  and  vigilance.1 


1  Robert  Dickey  &  Wife  v.  Maine  Telegraph  Company,  43  Maine, 
492.  The  following  is  the  opinion  of  the  Court:  "In  May,  A.D.  1854,  a 
stage-coach  in  which  the  female  plaintiff  was  travelling  on  a  highway  in 
Northport,  in  the  County  of  Waldo,  came  in  contact  with  a  telegraph  wire 
extending  across  the  way,  and  was  overset,  and  she  was  injured  thereby. 

"  The  wire  was  owned  and  placed  there  by  the  defendants'  company, 
and  '  became  slack,  and  drooped  so  low '  that  the  carriage  could  not  pass 
under  it. 

"  The  plaintiffs  brought  this  action  to  recover  pay  for  the  damages  sus- 
tained. 

"  The  case  is  presented  on  the  defendants'  motion  for  a  new  trial,  on 
the  ground  that  the  verdict  against  them  was  against  the  evidence,  and 
also  upon  exceptions. 

"  It  was  not  sufficient  for  the  plaintiffs  to  prove  that  the  defendants 
were  in  fault.  To  entitle  themselves  to  a  verdict  the  plaintiffs  were  bound 
to  show  that  there  was  no  negligence  or  want  of  ordinary  care,  contributing 
to  the  injury,  on  the  part  of  the  female  plaintiff.  She  was  required  to 
exercise  due  and  proper  care  to  protect  herself  from  injury.  If  her  own 
negligence  or  rashness  or  want  of  ordinary  care  concurred  in  producing 
the  injury  of  which  they  complain,  the  plaintiffs  ought  not  to  have  recov- 
ered damages  for  it,  against  the  defendant  company. 

"•  The  burden  of  proof  was  on  the  plaintiffs  to  show,  affirmatively,  the 

6  [81] 


§  65  LIABILITY    OF    TELEGRAPH    COMPANIES  ;  [PART  I. 

§  65.  It  is  the  duty  of  telegraph  companies  to  pro- 
vide suitable  instruments,  posts,  wires,  etc.,  for  the 
proper  construction  and  efficient  working  of  their 
line ;  and  for  failure  in  this  respect  they  would  be 
liable  in  damages  to  third  persons  l  having  no  privity 
with  the  company,  and  also  to  those  in  privity  of  con- 
tract with  it;  but  a  greater  degree  of  care  and  dili- 
gence would  be  required  of  the  company,  in  case  of 
one  not  in  privity  of  contract  with  it  who  had  suf- 
fered injury  by  such  neglect  of  duty,  than  where  the 
injury  was  suffered  by  one  of  its  own  agents  or  serv- 
ants. 

But  in  case  of  injury  to  its  servants  or  agents, 
caused  by  any  defect  in  the  machinery  Connected  with 
the  construction  of  its  line,  the  company  would  be 


exercise  of  such  due  and  proper  care  or  vigilance  on  her  part ;  and  the 
defendant  company  allege  that  the  verdict  was  against  the  evidence  on  this 
point.  If  the  driver  was  guilty  of  neglect  or  want  of  ordinary  care,  the 
plaintiffs  would  be  equally  affected  thereby,  as  if  the  female  plaintiff  were 
the  driver. 

"  To  prove  the  manner  in  which  the  accident,  causing  the  injury,  hap- 
pened, the  plaintiff  introduced  as  a  witness  the  driver  of  the  carriage, 
David  Harding,  and  the  deposition  of  Henry  Brown.  The  testimony  of 
Harding,  as  reported  in  the  case,  not  only  fails  to  show  that  he  used  ordi- 
nary care  and  prudence,  as  a  driver,  at  the  time  of  the  accident,  but  it 
contains  plenary  evidence  of  gross  carelessness  or  rashness  on  his  part, 
which  manifestly  contributed  to  the  accident  and  the  injury ;  and  the  dep- 
osition of  Brown  in  no  manner  relieves  the  case  from  the  effect  of  Hard- 
ing's  testimony.  We  think  the  verdict  is  very  plainly  against  the  evi- 
dence." See  also  Penn.  R.R.  Co.  v.  Aspell,  23  Pa.  St.  R.  147;  Laing 
Colder,  8  Pa.  St.  R.  479. 

1  The  duties  of  common  carriers  are,  by  the  Supreme  Court  of  Ten- 
nessee, expressed  thus :  They  undertake  that  the  road  is  in  good  travel- 
ling order,  and  fit  for  use ;  and  that  the  engines  and  carriages  employed 
are  road-worthy,  and  properly  constructed  and  furnished  according  to  the 
present  state  of  the  art.  Nashville  &  Chat.  R.R.  Co.  v.  John  Messino,  1 
Sneed  (Tenn.)  R.  220. 
[82] 


CHAP.  VI.]       AND    INJURIES    TO    TELEGRAPHS.  §  67 

liable  if  it  had  failed  to  exercise  reasonable  care  in 
providing  proper  machinery. 

§  66.  It  has  been  held,  that  it  is  not  necessary  to 
allege  actual  knowledge  in  the  company  of  such  de- 
fect, in  an  action  against  it  by  one  of  its  servants  for 
injuries  sustained  thereby :  it  is  sufficient  to  allege  the 
negligence  of  the  company,  and  that  the  injury  re- 
sulted therefrom,  and  under  such  allegation,  the  knowl- 
edge on  the  part  of  the  company  may  be  shown. 

In  the  case  of  Byron  v.  The  New  York  State  Print- 
ing Telegraph  Company,1  the  plaintiff,  who  was  a 
servant  of  the  company,  was  engaged  in  the  duties  of 
his  employment  in  adjusting  the  wires  and  insulators 
upon  one  of  the  poles  of  defendants'  line,  and  while 
he  was  fastened  to  the  top  of  the  pole  for  that  pur- 
pose, the  pole  broke,  and  he  was  cast  to  the  ground 
and  injured ;  and  the  accident  was  caused  by  a  defect 
hi  the  pole  not  visible  to  the  plaintiff,  and  of  which 
he  had  no  knowledge :  the  allegations  were  that  the 
injury  was  suffered  "•  by  and  through  the  carelessness, 
negligence,  unskilfulness,  and  default  of  the  defen- 
dants and  their  servants  in  providing,  using,  and  suf- 
fering to  be  used  a  bad,  insufficient,  unsound,  and 
unsafe  telegraph  pole."  Upon  demurrer  to  the  dec- 
laration it  was  held,  that  it  was  unnecessary  to  allege 
knowledge  of  the  defect  in  the  pole  on  the  part  of 
the  company,  and  that  the  allegation  of  negligence 
would  be  sustained  by  proving  the  danger  from  the 
defect  in  the  pole,  and  that  it  was  known  to  the  de- 
fendants. 

1  26  Barb.  R.  39.     See  also  Keegan  v.  The  Western  R.R.  Co.  4  Seld. 
175. 

[83] 


§  67  LIABILITY    OF   TELEGRAPH    COMPANIES  ;    [PART  I. 

§  67.  The  principle  which  determines  the  liability 
of  the  company  to  its  agents  and  servants,  is  the  same 
as  in  the  relation  of  master  and  servant. 

The  duty  rests  upon  the  master,  in  his  relation  to 
his  servant,  to  use  reasonable  care  and  diligence  in 
providing  all  things  necessary  and  essential  in  the 
scope  of  the  work  which  the  servant  has  to  do, 
whether  it  be  in  the  employment  of  fellow-servants,1 
or  in  providing  suitable  and  proper  instruments  and 
machinery  for  the  work  which  the  servant  has  to  per- 
form.2 

There  is  no  warranty,  however,  of  the  absolute 
sufficiency  of  the  machinery,  and  it  would  not  be  liable 
for  injuries  arising  from  latent  defects,  nor  indeed 
from  such  patent  defects  as  the  servant  was  himself 
cognizant  of.  If  the  servant  remained  in  the  employ 
of  the  company  with  full  knowledge  of  such  defects, 
without  informing  the  company  thereof,  or  taking 
other  precautions  to  have  them  remedied,  he  would 
be  presumed  to  take  upon  himself  the  risks  incident 
thereto.3 

1  The  rule  of  liability  of  the  company  for  injury  by  one  employee  to 
another,  may  be  stated  as  follows:  Where  two  persons  are  acting  in  a 
common  employment  under  the  same  principal,  if  one  should  be  injured 
by  the  negligence,  unskilfulness,  or  rashness  of  the  other,  the  principal  is 
not  liable  to  the  injured  party  in  an  action  grounded  alone  upon  such 
negligence  in  the  employee.  Story  on  Agency,  §  453  and  notes,  2  Kent, 
281,  top  page,  and  notes,  3  Mees.  &  Wels.  1. 

J  Nashville  &  Chatt.  R.R.  Co.  v.  Messino,  1  Sneed,  220 ;  Keegan  v. 
Western  R.R.  Co.  4  Seld.  175. 

»  In  the  case  of  Perry  ».  Marsh,  25  Ala.  (N.S.)  R.  659,  the  rule 
is  thus  stated :  "  Where  a  workman  is  employed  to  do  a  dangerous  job, 
or  to  work  in  a  service  of  peril,  if  the  danger  belongs  to  the  work 
which  he  undertakes,  or  the  service  in  which  he  engages,  he  will  be  held 
to  all  the  risks  which  belong  either  to  the  one  or  the  other ;  but  where 
[84] 


CHAP.  VI.]       AND    INJURIES    TO    TELEGRAPHS.  §  68 

§  68.  The  obligation  to  provide  suitable  instruments, 
posts,  wires,  etc.,  is,  in  some  of  the  States,  expressly 
imposed  by  statute,  and  penalties  inflicted  for  non- 
compliance. 

By  statute  of  Alabama  of  Feb.  10,  1862,  it  is 
made  the  duty  of  every  telegraph  company,  at  each 
and  every  point  that  the  wires  of  any  line  of  tele- 
graph may  cross  any  private  or  public  road,  to  erect 
substantial,  durable,  and  permanent  posts  or  piers, 
to  prevent  the  falling  of  the  wires  so  as  to  obstruct 
or  interfere  with  the  travel  on  such  road,  and  for  fail- 
ure so  to  do,  and  upon  the  falling  of  the  wires,  a 
penalty  is  imposed.1 

By  Kevised  Code  of  Delaware,  1852,  c.  128,  sec. 
2884,  it  is  provided  that  telegraph  wires  shall  be 
attached  to  the  poles  at  least  twelve  feet  above  the 
ground,  except  where  they  enter  a  house  ;  and  if  any 
agent  of  the  company  having  supervision  of  the  line 

there  is  no  danger  in  the  work  or  service  by  itself,  and  the  peril  grows  out 
of  extrinsic  causes  or  circumstances,  which  cannot  be  discovered  by  the 
use  of  ordinary  precaution  and  prudence,  the  employer  would  be  answer- 
able, precisely  as  a  third  person,  if  the  injury  or  loss  was  occasioned  by 
his  neglect  or  want  of  care.  In  such  a  case  the  injury  would  be  outside 
of  the  employment,  and  the  employer  would,  as  to  such  injury,  be  in  fact  a 
third  person,  and  fall  within  the  same  rule  as  to  responsibility." 

In  accordance  with  this  doctrine,  we  would  say  that  telegraphic  opera- 
tors take  all  the  risk  upon  themselves  of  injury  resulting  from  excessive 
charges  of  electricity  derived  from  the  atmosphere.  They  know  the  dan- 
ger, and  yet  damage  done  by  the  fluid  upon  the  wires  could  hardly  be 
called  the  act  of  God,  for  the  force  is  applied  through  artificial  means,  put 
into  operation  by  the  company. 

Also  see  Skip  v.  Eastern  Counties  Railway  Co.  24  Eng.  Law  &  Eq. 
R.  p.  396,  where  the  plaintiff  voluntarily  undertook  the  dangerous  duty  of 
attaching  certain  cars  to  the  engine,  and  was  injured:  held,  that  he  was 
not  entitled  to  recover,  the  company  not  being  in  fault. 

1  Appendix  D. 

[85] 


§  69  LIABILITY    OF    TELEGRAPH    COMPANIES  J    [PART  I. 

shall  suffer  this  provision  to  be  violated,  he  shall  suf- 
fer the  penalties  therein  imposed. 

By  statute  of  Nevada,  February  9,  1866,  sec.  7, 
the  owners  of  telegraph  lines  availing  themselves  of 
the  provisions  of  the  act  shall  at  all  times  keep  their 
line  in  as  good  condition  and  repair  as  may  be  prac- 
ticable, and  if  they  fail  so  to  do,  such  failure  shall 
work  a  forfeiture  of  all  rights,  privileges,  and  fran- 
chises belonging  to  such  owner,  or  any  person  having 
an  interest  in  the  line.1 

§  69.  A  telegraph  company  is  liable  ex  delicto  for 
an.  injury  done  by  its  agents  or  servants  to  third 
persons  ;  for  misfeasance  as  well  as  non-feasance.2 

In  the  discordant  state  of  the  authorities,  it  might 
be  unsafe  for  us  to  lay  down  a  general  rule  touching 
the  superior's  liability  for  wilful  and  injurious  acts  of 
agents.  A  full  discussion  of  the  subject  in  its  general 
bearings  is  foreign  to  our  purpose.  In  some  cases  the 
liability  is  denied.3  Other  authorities  maintain  the  af- 
firmative.4 Whether  the  act  was  or  was  not  done  in 


1  See  Appendix  H,  X. 

*  Drybury  v.  N.Y.  &  Wash.  Print.  Teleg.  Co.  35  Pa.  St.  R.  298 ;  Dun- 
ning &  Smith  v.  Roberts,  35  Barb.  463  ;  Birney  v.  N.Y.  &  Wash.  Printing 
Teleg.  Co.  18  Md.  341. 

3  Wright  ».  Wilcox,  19  Wend.  343 ;  Croft  v.  Allison,  4  B.  &  Aid.  590. 
McManus  v.  Crickett,  1  East,  106,  is  usually  cited  as  a  leading  case;  also, 
see  Lowell  ».  Boston  &  Lowell  R.R.  Corp.  23  Pick.  31. 

The  26  &  27  Viet.  c.  112,  §  42,  provides  "  that  the  telegraph  com- 
pany shall  be  answerable  for  all  accidents,  damages,  and  injuries  hap- 
pening through  the  act  or  default  of  the  company,  or  of  any  person  in 
their  employment,  by  reason  or  in  consequence  of  any  of  the  company's 
works,  and  shall  save  harmless  all  bodies  having  the  control  of  streets  or 
public  roads,  collectively  and  individually,  and  their  officers  and  servants, 
from  all  damages  and  costs  in  respect  of  such  accidents  or  injuries." 

«  Phil.  &  Reading  R.R.  Co.  v.  Derby,  14  How.  U.S.  468 ;  Noyes  v. 
[86] 


CHAP.  VI.]       AND    INJURIES    TO    TELEGRAPHS.  §  69 

the  actual  discharge  of  duty,  has  been  the  turning- 
point  in  many  instances ;  and  in  others,  the  form  of 
action  has  controlled  the  decision.1  We  think  that  in 
this  respect  the  analogy  between  telegraph  companies 
and  common  carriers  is  so  strong  —  indeed  we  assume 
that  they  are  carriers  —  that  these  differences  may  be 
pretermitted  for  the  present ;  because  they  are  always 
held  responsible  for  wilful  acts  of  their  servants  in  re- 
spect of  goods.2  The  custody,  sending,  and  delivery  of 
messages  are  the  chief,  if  not  the  only,  occasions  for  an 
application  of  the  doctrine  to  telegraph  companies. 
We  therefore  say  that  they  are  liable  for  wilful  and 
injurious  acts  of  their  agents  in  these  respects.  We 
will,  however,  observe  further,  that  it  has  been  held 
that  a  corporation  is  not  liable  for  a  wilful  act  of  tres- 
pass on  the  part  of  its  servant,  even  when  authorized 
by  the  president  and  general  agent  of  the  company.3 

And  on  the  other  hand  the  company  would  be  lia- 
ble for  the  acts  .of  its  servants  or  agents  done  in  the 
legitimate  course  of  their  employment,  even  although 
they  may  have  violated  the  instructions  of  the  com- 
pany in  the  particular  act,  if  it  be  not  an  act  of  wilful 
trespass ; 4  nor  is  it  liable  for  their  fraudulent  repre- 
sentations made  outside  of  the  scope  of  their  employ- 
ment.5 


Rut.  &  Bur.  R.R.  Co.  27  Vt.  110;  1  Red.  on  Railways,  §  130,  and  notes, 
late  edition. 

1  McManus  v.  Crickett,  1  East,  106;  Phil.  R.R.  Co.  v.  Wilt,  4  Whart. 
143;  111.  Cent.  R.R.  Co.  v.  Downey,  18  HI.  259. 

2  See  post,  §  138. 

3  Vanderbilt  v.  Richmond  Turnpike,  2  Comst.  479. 

4  Phil.  &  Reading  R.R.  Co.  v.  Derby,  14  How.  U.S.  468. 

6  Mechanics'  Bank  v.  N.Y.  &  N.H.  R.R.  Co.  3  Kernan,  599. 

[87] 


§  71  LIABILITY    OF    TELEGRAPH    COMPANIES;    [PART  I. 

§  70.  Where  the  company,  in  the  construction  of  its 
line,  pursues  the  mode  pointed  out  by  its  charter,  or 
general  statute  authorizing  its  existence,  and  does 
only  such  acts  as  are  proper  and  necessary  to  the 
construction  and  completion  of  its  line,  it  is  not 
answerable  for  injuries  occasioned  thereby  to  third 
persons,  beyond  the  remedy  given  them  by  statute ; 
but  if  it  execute  its  work  in  a  manner  different  from 
that  authorized  by  its  charter  or  general  statute,  as 
the  case  may  be  ;  or  if,  in  pursuing  the  required  mode, 
it  executes  its  work  in  so  negligent  or  wanton  a  man- 
ner, as  to  cause  unnecessary  damage,  it  is  liable  to  an 
action  ex  delicto  at  the  suit  of  the  injured  party.1 

Wherever  the  statute  gives  a  remedy,  as  a  general 
thing,  that  remedy  must  be  pursued ;  but  the  company 
would  be  liable  to  be  sued  at  common  law  for  any 
abuse  of  the  power  which  the  statute  confers  upon  it.2 

Where,  in  the  construction  of  its  line,  it  transcends 
the  power  given  it  by  the  statute  under  which  it  oper- 
ates, as  we  have  seen,  a  telegraph  company  may  be 
sued  in  trespass,  and  at  the  suit  of  another  corpora- 
tion.3 

§  71.  A  telegraph  company  would  be  liable  for  the 
infraction  of  a  patent  right,  and  would  have  its  right 
of  action  against  third  persons  for  any  infringement 
of  a  patent  to  which  it  had  the  legal  right. 

1  Dearborn  v.  Boston,  Concord,  &  Montreal  R.R.  Co.  4  Foster,  187; 
Davis  c.  London  &  Blackwall  R.R.  Co.  1  Man.  &  Gr.  799.  • 

8  Crawfordsville  &  Wabash  R.R.  Co.  v.  Wright,  5  Ind.  252 ;  Mason  v. 
Kennebec  &  Portland  R.R.  Co.  31  Maine,  215;  Turner  u.  Sheffield,  &c. 
R.R.  Co.  10  Mee8.  &  Welsb.  425. 

3  The  South  Eastern  Railway  Co.  v.  The  European  &  American  Elec- 
tric Printing  Telegraph  Co.  &  Friend,  24  Eng.  Law  &  Eq.  R.  513;  ante, 
c.  3,  §  31. 
[88] 


CHAP.  VI.]       AND    INJURIES    TO    TELEGRAPHS.  §  72 

Several  cases  have  come  before  the  courts  upon  the 
question  of  interference  with  patent  rights  in  relation 
to  inventions  in  telegraphing. 

A  general  discussion  of  the  merits  of  the  differ- 
ent inventions,  and  the  principles  which  must  govern 
the  courts  in  deciding  the  respective  rights  of  the 
parties,  will  be  found  in  the  cases  referred  to  in  the 
note.1 

Only  a  mere  reference  to  them  need  be  made  in 
the  text,  as  to  do  more  would  require  a  statement  at 
length  of  the  facts  presented  in  each  case. 

It  would  seem  to  be  settled  that  there  cannot  be  a 
patent  for  a  principle,2  nor  for  an  effect.  Two  per- 
sons may  use  the  same  principle,  or  produce  the 
same  effect  by  different  means,  without  interference 
or  infringement,  and  each  would  be  entitled  to  a 
patent  for  his  own  invention. 

An  interference,  to  amount  to  an  infraction  of  a 
patent,  must  be  an  interference  with  patentable 
matter.3 

§  72.  Any  interference  with  the  line  of  a  telegraph 
company,  or  its  other  property,  by  third  persons, 
would  give  the  company  a  right  of  action  for  the 
injury.  When  it  has  established  its  line  in  accord- 
ance with  the  requirements  of  the  law  under  which  it 

1  Morse  v.  O'Reilly,  6  West.  Law  Journ.  102  ;  Bain  v.  Morse,  6  West. 
Law  Journ.  372;  F.  O.  J.  Smith  v.  J.  W.  Clark,  10  Am.  Law  Register, 
185;  O'Reilly  v.  Morse,  15  How.  U.S.  62-142;  The  Electric  Telegraph 
Co.  v.  Nott,  11  Jurist  (O.S.),  157;  ib.  590;  The  Electric  Telegraph  Co. 
v.  Brett,  15  Jurist,  579. 

2  Boulton  &  Watt  v.  Bull,  2  H.  B.  463 ;  Hornblower  v.  Boulton,  8  T.  R. 
99;  Le  Roy  v.  Tatham,  14  How.  U.S.  156;  O'Reilly  v.  Morse,  15  How. 
U.S.  62. 

3  Bain  v.  Morse,  6  West.  Law  Journ.  372. 

[89] 


§  73  LIABILITY    OF   TELEGRAPH    COMPANIES  ',    [PART  I. 

operates,  it  will  be  protected  in  the  undisturbed  use 
and  enjoyment  of  the  same. 

The  statutory  provisions  upon  this  subject  are  very 
severe,  and  a  criminal  liability  is  in  most  of  the  States 
imposed  upon  third  persons,  as  we  shall  see ; 1  they 
will  afford  an  ample  guarantee  to  telegraph  companies 
for  the  undisturbed  enjoyment  of  their  rights  in  the 
operation  of  their  line. 

The  general  principle  is  clear  that  the  law  will 
afford  its  protection  to  the  telegraph  company  in  the 
enjoyment  of  its  property  of  every  description. 
When  it  has  organized,  and  put  its  line  into  operation 
in  the  manner  required  by  its  charter,  any  injury  to 
its  line  will  give  the  company  the  right  to  recover 
damages  against  the  party  in  a  civil  action,  independ- 
ent of  statutory  fines  and  penalties. 

§  73.  In  the  recent  case  of  Submarine  Telegraph 
Company  v.  Dickens,2  the  question  of  liability  for  in- 
jury to  a  telegraph  line  was  brought  before  the  court, 
in  England. 

The  plaintiff,  the  Submarine  Telegraph  Company, 
was  the  owner  of  a  telegraph  line  between  England 
and  France ;  its  cable  extending  from  Dover  to 
Calais. 

The  defendant  was  the  owner  of  a  Swedish  vessel, 
and  out  upon  the  high  seas  its  anchor  became  entan- 
gled in  the  plaintiff's  cable,  which  was  lying  at  the 
bottom  of  the  sea.  The  plaintiff  alleged  in  the  dec- 
laration that  the  defendants  so  negligently  and  care- 
lessly navigated  their  vessel  and  tackle,  that  the 

1  See  post,  c.  9. 

*  15  C.  B.  (N.S.)  759.    See  The  Jurist  for  1864,  vol.  10,  p.  311. 
[90] 


CHAP.  VI.]       AND    INJURIES    TO   TELEGRAPHS.  §  75 

anchor  of  the  defendants'  ship  came  in  contact  with 
the  cable  of  the  plaintiff  and  damaged  it.  The  de- 
fendants pleaded  that  the  cable  was  more  than  three 
miles  from  the  English  shore  at  the  place  where  it 
was  injured,  and  that  they,  the  defendants,  were  aliens, 
and  that  the  damage  was  committed  in  the  act  of 
drawing  up  their  anchor,  and  in  the  ordinary  course 
of  navigation,  and  without  knowledge  of  the  position 
of  the  plaintiff's  cable. 

The  case  came  before  the  court  on  demurrer  to  the 
pleas,  and  it  was  held  that  the  declaration  was  good ; 
and  that  the  defendants  would  be  liable  in  an  English 
court  if  negligence  were  established,  and  that  the 
court  had  jurisdiction  if  the  injury  occurred  on  the 
high  seas,  and  if  the  defendants  were  aliens,  provided 
they  had  been  guilty  of  negligence  in  navigating  their 
ship.  Upon  the  question  of  negligence,  the  Court  say, 
if  the  defendants  had  no  knowledge  of  the  situation 
of  the  cable,  but  had  the  means  of  knowledge,  that 
would  be  sufficient  proof  of  negligence. 

§  74.  A  telegraph  company  has  a  right  of  action, 
ex  delicto,  against  any  person,  who,  in  any  way,  has 
injured  it  in  the  enjoyment  or  use  of  its  property,  or 
who  has  violated  any  of  the  reasonable  rules  and  reg- 
ulations which  the  law  authorized  it  to  adopt  for  the 
proper  discharge  of  the  duties  connected  with  its 
public  employment,  as  well  as  for  injuring  its  posts, 
wires,  operating  apparatus,  or  other  material  used  by 
it  in  its  business ;  or  for  intercepting  or  in  any  way 
interfering  with  the  messages  transmitted  over  its 
line. 

§  75.  Injury  to  the  works  of  telegraph  companies, 

[91] 


§  75  LIABILITY    OF   TELEGRAPH    COMPANIES  ;    [PART  I. 

or  obstruction  or  disturbance  of  their  lines,  is  made 
criminal  by  statute,  in  Canada  and  in  most  of  the 
States  of  the  United  States. 

By  the  Consolidated  Statutes  of  Canada,  c.  67,  sec. 
21,  "  any  person  who  wilfully  and  maliciously  cuts, 
breaks,  molests,  injures  or  destroys  any  instrument, 
cap,  wires,  post,  line,  pier,  or  abutment,  or  the  mate- 
rial or  property  belonging  thereunto,  or  any  other 
erections  used  for  or  by  any  line  of  electro-magnetic 
wires  in  operation  in  this  Province,  under  any  act  in 
force  herein,  or  maliciously  or  wilfully  obstructs,  dis- 
turbs, or  impedes  the  action,  operation,  or  working  of 
the  telegraph  line,  shall  be  guilty  of  a  misdemeanor, 
and  be  punished  by  fine  and  imprisonment." 

Similar  provisions  to  the  Canada  statute  are  to  be 
found  in  the  statute  regulations  on  the  subject  of  tele- 
graphs, in  the  States  of  Pennsylvania,  Ohio,  Virginia, 
Wisconsin,  California,  Maryland,  Tennessee,  Alaba- 
ma, Connecticut,  Illinois,  Indiana,  Massachusetts,  and 
Florida. 

By  the  New  Jersey  statute  of  March  5,  1853, 
sec.  6,  "  if  any  person  or  persons  shall  wilfully  and 
unlawfully  injure,  destroy,  or  obstruct  the  use  of  any 
telegraph  line  constructed  by  virtue  of  this  act,  such 
person  or  persons  so  offending  shall,  for  the  first 
offence,  pay  to  the  said  company  the  sum  of  one  hun- 
dred dollars,  to  be  recovered  as  debts  of  like  amounts 
are  by  law  recoverable,  and  be  liable  for  all  damages  ; 
and  shall,  for  the  second  offence,  on  conviction  there- 
of, be  liable  to  imprisonment  in  the  county  jail  not  to 
exceed  one  year." 

By  General  Statutes  of  Vermont,  Revision  of  1863, 

[92] 


CHAP.  VI.]       AND    INJURIES    TO    TELEGRAPHS.  §  75 

c.  88,  sec.  6,  "if  any  person  shall  in  any  wise  wil- 
fully or  intentionally  cut,  break,  injure,  or  despoil 
any  such  telegraph  wire  or  post,  or  other  fixture  so 
erected  within  this  State,  so  as  directly  or  indirectly 
to  interrupt  or  impede  the  transmission  of  intelligence 
by  said  telegraph  by  means  of  cutting,  breaking,  or 
in  any  manner  injuring  such  wire,  post,  or  fixture, 
as  aforesaid,  or  by  wilfully  interposing  any  other 
thing  or  material,  or  doing  any  act  that  shall  injure, 
divert,  impede,  or  interrupt  the  free  passage  of  the 
galvanic  fluid  or  influence  along  said  line,  or  prevent 
the  transmission  of  intelligence  along  the  same,  or  do 
any  act  to  impair  the  value,  safety,  or  security  of  the 
same,  each  and  every  person  so  offending,  or  aiding 
or  assisting  in  such  offence,  shall  forfeit  the  sum  of 
one  hundred  dollars,  to  be  recovered  by  an  action  of 
debt  founded  on  this  chapter,  in  the  name  of  the 
superintendent  of  such  line  of  telegraph  for  the  time 
being,  in  any  court  proper  to  try  the  same,  for  the  use 
and  benefit  of  the  owner  or  owners  of  such  telegraph ; 
and  shall  also  be  liable  to  be  tried  and  punished  by 
fine  and  imprisonment,  as  is  provided  by  law  in  other 
cases  of  malicious  acts." 

By  act  of  February  3,  1860,  General  Laws  of  Min- 
nesota, c.  12,  sec.  2,  "  if  any  person  or  persons  shall 
unlawfully  and  wilfully  injure,  destroy,  or  obstruct  the 
use  of  any  telegraph  line  constructed  by  virtue  of  the 
law  of  this  State,  such  person  or  persons  so  offending 
shall  for  the  first  offence,  on  conviction  thereof,  pay  to 
the  company  the  sum  of  one  hundred  dollars,  to  be 
recovered  as  debts  of  like  amount  are  recoverable  by 
law,  or  be  imprisoned  in  the  county  jail  not  exceeding 

[93] 


§  75  LIABILITY    OF    TELEGRAPH    COMPANIES  ;    [PART  I. 

three  months,  and  shall  also  be  liable  for  all  damages  ; 
and  shall  for  the  second  offence,  on  conviction  thereof, 
be  liable  to  imprisonment  in  the  county  jail  not  to  ex- 
ceed one  year,  and  be  subject  to  pay  to  said  company 
a  sum  not  exceeding  two  hundred  dollars,  and  shall 
be  liable  for  all  damages. 

By  statute  in  Delaware  for  such  wilful  and  mali- 
cious injury,  by  cutting  down  or  injuring  any  pole,  or 
cutting,  breaking,  or  displacing  any  wire  of  any  tele- 
graph company  of  the  State  so  as  to  obstruct  telegraph- 
ic communication,  the  person  offending  "  shall  forfeit 
and  pay  to  such  company,  or  to  any  one  who  will  sue 
for  the  same,  twenty-five  dollars  for  the  first  offence, 
and  fifty  dollars  for  every  subsequent  offence ;  and 
when  such  penalty  is  sued  for  and  recovered  by  any 
other  than  the  agent  of  such  company,  one-half  of 
the  same  shall  be  for  the  use  of  such  informer ; " 
there  shall  be  no  stay  of  execution,  and  if  the  plaintiff 
makes  affidavit  that  the  defendant  has  not  sufficient 
property  in  the  county  to  satisfy  the  judgment,  the 
defendant  shall  be  committed  to  prison  for  one  month.1 

By  the  Compiled  Statutes  of  New  Hampshire  of 
1853,  c.  229,  sec.  3,  4,  the  punishment  provided 
for  such  offences  is  "  by  solitary  imprisonment  not 
exceeding  six  months,  and  by  confinement  to  hard 
labor  for  life,  or  for  a  term  not  less  than  two  years." 

The  Revised  Statutes  of  Kentucky,  1860,  c.  28, 
art.  14,  sec.  5,  provides  that  if  "  any  person  shall  wil- 
fully or  maliciously  injure,  obstruct,  or  destroy  a  tele- 
graph line,  post,  or  pier,  or  the  material  or  property 
belonging  to  or  attached  to  a  telegraph,  he  shall  be 

1  Revised  Code  of  1852,  c.  128,  §  19. 
[941 


CHAP.  VI.]       AND    INJURIES   TO    TELEGRAPHS.  §  75 

confined  in  the  penitentiary  not  less  than  two  nor 
more  than  ten  years." 

The  Revised  Code  of  Louisiana,  1856,  §  104, 
provides  that  for  such  offences,  the  party  offending 
"  shall  on  conviction  be  punished  by  fine  not  exceed- 
ing five  hundred  dollars,  or  imprisonment  in  the  peni- 
tentiary not  exceeding  one  year,  or  both,  at  the  discre- 
tion of  the  Court." 

By  statute  of  Georgia,  Act  of  1854,  February  15, 
sec.  1,  "if  any  person  shall  wilfully  destroy,  damage, 
or  in  any  way  injure  said  telegraph  wires,  posts,  or 
fixtures,  he,  she,  or  they  shall  be  guilty  of  a  high 
misdemeanor,  and  may  be  indicted  in  the  Superior 
Court  of  the  county  where  such  damage  may  be  done  ; 
and  upon  conviction  shall  be  imprisoned  at  hard 
labor  in  the  penitentiary  for  a  time  not  exceeding 
three  nor  less  than  one  year,  at  the  discretion  of  the 
Court." 

By  the  statutes  of  the  province  of  New  Brunswick, 
Revision  of  1854,  c.  153,  sec.  7,  it  is  enacted  that 
"  whoever  shall  maliciously  cut,  injure,  or  destroy  the 
posts,  wires,  or  other  apparatus  or  property  connected 
with  or  belonging  to  any  line  of  electric  telegraph, 
now  or  hereafter  to  be  established,  shall  be  guilty  of 
felony,  and  be  imprisoned  for  any  term  not  exceeding 
seven  years." 

[95] 


§  77  REMEDIES.  [PART  i. 


CHAPTER  VII. 

REMEDIES. 

§  76.  THE  same  remedies  which  exist  in  favor  of, 
or  against,  other  corporations,  may  be  had  in  case  of 
telegraph  companies. 

A  general  discussion  of  this  subject  will  be  found 
in  works  on  corporations.  This  chapter  will  be  con- 
fined to  a  general  reference  to  the  ordinary  remedies 
in  Courts  of  Law  and  Equity,  with  a  more  particular 
and  detailed  statement  of  the  remedies  provided  by 
statute  pertinent  to  telegraph  companies. 

§  77.  A  company  may  be  sued  in  the  place  where 
it  has  its  usual  place  of  business.1 

Jurisdiction  of  Federal  courts  over  telegraph  com- 
panies, considered  as  citizens  within  the  meaning  of 
the  Constitution  of  the  United  States,  depends  upon 
considerations  and  conditions  applicable  alike  to  all 
corporations.2 

The  person  upon  whom  process  must  be  served, 
in  order  to  bring  the  company  before  the  Court,  is 
usually  designated  by  general  statute  on  the  subject 
of  corporations  or  telegraph  companies,  or  in  the  char- 

1  The  place  of  business  of  a  corporation  for  the  purposes  of  a  suit  is 
the  same  as  the  residence  of  a  natural  person.  1  American  Railway  Cases, 
p.  142,  n.  1. 

*  Ohio  &  Miss.  R.R.  Co.  ».  Wheeler,  1  Black.  296,  and  the  cases  there 
cited ;  Saml.  Works  ».  Junction  R.R.  Co.  5  McLean,  425. 
[96] 


CHAP.  VII.]  REMEDIES.  §  78 

ter  when  the  company  is  organized  under  special  act 
of  incorporation. 

Generally,  service  is  to  be  made  on  the  president 1 
or  one  of  the  directors  ;  but  in  some  States  it  may  be 
upon  any  clerk  or  agent  of  the  company.2 

§  78.  Wherever  a  specific  duty  is  imposed  upon 
the  company  by  law,  it  may  be  compelled  to  per- 
form that  duty  by  mandamus;  this  is  the  appro- 
priate remedy  in  case  of  the  non-performance  of  duties 
imposed  by  statute.3  It  may  be  issued  at  the  suit  of 
the  company  against  the  officers  of  a  municipal  cor- 
poration, or  others,  to  compel  them  to  perform  the 
duties  enjoined  by  statute,  with  reference  to  the  or- 
ganization, or  the  successful  operation  of  the  com- 
pany.4 

If  the  act  under  which  the  company  claimed  its 
legal  existence  was  imperative  upon  the  company  to 
complete  its  line,  this  duty  may  be  enforced  by  man- 
damus :  it  has  been  so  held  in  case  of  railways.5 


1  In  the  case  of  The  Illinois  &  Mississippi  Telegraph  Company  v.  Ken- 
nedy, 24  111.  R.  319,  it  was  held,  that  where  the  statute  provided  that  the 
service  should  be  on  the  president,  a  return  showing  service  on  A.  B.,  "  as 
president"  of  the  company,  is  not  sufficient  to  bring  the  company  into 
court." 

2  By  Revised  Statutes  of  Missouri,  c.  156,  §  10,  process  or  notice  served 
upon  any  clerk  or  agent  of  any  telegraph  company,  at  any  of  the  offices  of 
such  company,  shall  be  sufficient  service  for  all  purposes  whatsoever.    Ap- 
pendix W. 

3  Angell  &  Ames  on  Corp.  c.  20 ;  Great  Western  Railways.  Reg.,  Ex- 
cheq.  Ch.  18  Law  &  Eq.  R.  211. 

4  Justices  of  Clark  v.  P.  W.  &  River  Turnpike  Co.  11  B.  Monroe, 
154;  Louisville  and  Nashville  R.R.  Co.  0.  County  Court  of  Davidson 
County,  1  Sneed,  637 ;  Carpenter  v.  County  Com.  of  Bristol,  21  Pick.  258. 

5  Hodges  on  Railways,  536, 540,  and  cases  cited ;  Great  Western  Rail- 
way Co.  v.  Reg.,  Excheq.  Ch.  1853,  18  Eng.  Law  &  Eq.  R.  211 ;  Reg.  v. 
York  &  North  Midland  Railway,  16  Eng.  Law  &  Eq.  R.  299. 

7  [97] 


§  79  REMEDIES.  [PART  i. 

So  it  may  be  compelled  to  establish  a  uniform  rate 
of  charges  in  the  transmission  of  messages.1 

It  is  also  the  appropriate  remedy,  at  the  instance 
of  either  the  company  or  the  land-owner,  to  compel 
commissioners  to  assess  damages,  or  an  inferior  tribu- 
nal to  appoint  the  commissioners,  where  this  is  the 
mode  required  by  statute.2 

We  may  state,  generally,  that  wherever  a  specific 
duty  is  enjoined  by  statute,  and  no  specific  remedy  is 
provided,  mandamus  is  the  proper  remedy  to  compel 
a  performance  of  that  duty ;  but  if  any  other  specific 
and  adequate  remedy  is  provided,  it  must  be  pursued.3 

This  remedy  is  regulated  by  statute  in  England  and 
most  of  the  American  States. 

§  79.  The  remedy  by  information  in  the  nature  of 
a  quo  warrantor  at  the  instance  or  on  behalf  of  the 
Government,  is  the  appropriate  remedy  in  a  pro- 
ceeding .against  a  corporation  for  usurpation  of  a 
franchise,  or  for  non-user  or  misuser  of  franchises  ; 
of  the  same  character  is  the  remedy  by  scire  facias. 

The  State  alone  can  insist  upon  a  forfeiture,  and 
may  waive  it; 4  and  a  forfeiture  can  never  be  declared 
in  a  collateral  proceeding.5 

Proceedings  in  case  of  insolvency  of  corporations ; 
non-user  or  abuse  of  franchises ;  the  mode  of  dis- 
posing of  the  assets  in  case  of  insolvency,  or  other 

1  Clarke  r.  L.  &  N.  Union  Canal,  6  A.  &  E.  (Q.B.)  R.  898. 

1  Illinois  Central  R.R.  Co.  v.  Rucker,  14  111.  353  ;  Carpenter  v.  County 
Commissioners  of  Bristol,  21  Pick.  258. 

3  Rex  v.  Nottingham  Old  Water  Works,  6  A.  &  E.  (Eng.  K.B.)  355. 

*  Angell  &  Ames  on  Corp.  c.  22,  §  777. 

6  James  Johnson  ».  Churchwell,  3  Head,  146 ;  People  v.  Miss.  &  At- 
lantic R.R.  Co.  14  111.  440. 
[98] 


CHAP.  VII.]  REMEDIES.  §  81 

cause,  authorizing  the  winding-up  of  the  affairs  of  a 
corporation,  are  now  as  a  general  thing  specially 
regulated  by  statute  in  England  and  most  of  the 
American  States. 

But  these  statutory  provisions  would  not  defeat  the 
jurisdiction  of  Courts  of  Equity,  where  they  would 
otherwise  have  jurisdiction.1 

§  80.  Courts  of  Equity  now  exercise  a  very  en- 
larged jurisdiction  over  corporations,  both  of  an  in- 
junctive  and  remedial  character. 

They  will  wind  up  the  affairs  of  an  insolvent  cor- 
poration at  the  suit  of  its  creditors ;  and  the  unpaid 
stock,  as  well  as  the  other  indebtedness  of  a  general 
character  due  to  the  corporation,  will  be  subjected  to 
the  creditors'  claims.2 

They  will  grant  relief  by  injunction  where  the 
company  exceeds  the  powers  granted  by  its  charter ; 3 
or  restrain  one  company  from  interfering  with  the 
franchises  of  another ;  4  or  restrain  the  company  from 
doing  irreparable  damage  to  an  individual ; 5  or  in  case 
of  a  nuisance  where  the  act  appears  per  se  to  be  a 
nuisance. 

§  81.  When  it  is  manifest  that  the  act  complained 
of  is  a  nuisance,  and  the  right  of  the  party  complain- 


1  Coats  v.  Clarence  R.R.  1  Russ.  &  M.,  Eng.  Ch.  181. 

2  Mann  u.  Currie,  2  Barb.  294  ;  Hightower  v.  Thornton,  8  Geo.  486 ; 
Marr  v.  Bank  of  West  Tennessee,  to  be  reported  in  4  Coldwell,  Tenn.  R. 

3  Webb  v.  The  Manchester  &  Leeds   Railway  Co.  1  Railw.  Cases 
(Eng.)  576. 

4  Cory  v.  Norwich  &  Yarmouth  Railway,  3  Railway  Cases  (Eng.)  524. 

5  Jerome  v.  Ross,  7  John.  Ch.  R.  315 ;  Spooner  v.  McConnell,  1  Mc- 
Lean, C.C.  R.  337;  Bonaparte  v.  Camden  &  Amboy  R.R.  1   Baldwin 
(N.J.)  205. 

[99] 


§  81  REMEDIES.  [PART  i. 

ing  is  clear,  Courts  of  Equity  will  interfere  at  once, 
without  waiting  for  a  trial  at  law;  but  where  the 
thing  complained  of  is  not  a  nuisance,  but  only  capa- 
ble of  becoming  such  ;  or  it  does  not  clearly  appear  in 
what  way  it  is  a  nuisance  or  that  the  injury  to  private 
property  is  irreparable,  they  will  not,  as  a  general 
thing,  grant  the  injunction  until  the  matter  has  been 
determined  at  law.1 

1  Attorney-General  at  the  relation  of  Baron  Rothschild  v.  United 
Kingdom  Electric  Telegraph  Co.  30  Beav.  287;  Attorney-General  v. 
The  United  Kingdom  Electric  Telegraph  Company,  30  Beav.  292;  Cases 
in  Chancery. 

The  first  of  these  cases  was  an  information  and  bill  by  the  Attorney 
General  at  the  relation  of  the  Baron  de  Rothschild,  and  by  the  Baron  him- 
self as  plaintiff,  against  the  company,  to  prevent  them  interfering  with  the 
public  highway  in  the  construction  of  their  lines  of  telegraph.  This  com- 
pany, without  any  parliamentary  powers,  though  they  professed  to  have 
them,  had  commenced  to  construct  their  line  along  many  of  the  public 
roads,  and,  amongst  them,  along  the  public  highway  at  Acton,  opposite  the 
property  of  which  Baron  Rothschild  was  the  owner  in  fee.  They  effected 
the  purpose,  first,  by  erecting  posts  from  fifteen  to  forty  feet  high  along  the 
footpath ;  but  they  had  removed  them,  and  had  then  placed  their  wires  in 
troughs  underneath  the  surface  of  the  roads.  The  information  also  stated 
that  the  company  had  also  dug  a  trench  of  about  a  foot  and  three-quar- 
ters in  depth,  and  a  foot  and  a  quarter  in  width,  along  the  whole  or 
greater  part  of  the  frontage  of  the  plaintiff's  land,  and  about  five  feet 
from  the  plaintiff's  boundary  fence  in  the  footpath  adjoining  the  same, 
along  which  plaintiff  and  her  Majesty's  subjects  were  entitled  and  author- 
ized to  travel,  etc.,  and  were  laying  their  troughs  therein,  and  were  pro- 
ceeding to  complete  their  works,  and  this  without  authority ;  it  was  stated 
that  this  was  a  public  nuisance  :  and  the  Baron  stated,  the  company  were 
constructing  their  works  contrary  to  his  will,  and  in  spite  of  his  remon- 
strance, and  were  attempting  to  obtain  proprietary  rights  and  easements 
in  the  soil  of  the  footpaths,  in  derogation  of  his  proprietary  right  in  such 
soil.  It  was  also  stated,  they  were  constructing  similar  works  along  other 
highways,  so  as  to  create  nuisances  to  the  public. 

The  information  prayed  for  an  injunction  to  restrain  the  company  from 

digging  up  or  disturbing  the  public  road,  or  the  footpath  abutting  upon 

and  adjoining  the  plaintiff's  land ;  an  injunction  against  the  company  to 

restrain  them  from  making,  issuing,  circulating,  any  statement  or  repre- 

[100] 


CHAP.  VII.]  REMEDIES.  §  82 

§  82.  Where  it  appeared  that  the  legal  right  of  the 
plaintiff  as  against  the  defendant  was  open  to  doubt, 

sentation,  that  they  had  parliamentary  powers ;   and  also  from  digging 
upon  or  disturbing  all  other  public  highways. 

The  Master  of  the  Rolls  said,  "  I  cannot  grant  an  injunction  in  the 
present  state  of  the  case. 

"  This  is  an  information  and  bill,  by  which  the  plaintiff  complains  of  an 
injury  done  to  his  own  properly,  and  the  Attorney-General  complains  of 
an  injury  done  to  the  public.  It  is  necessary  to  consider  these  matters  of 
complaint  separately. 

"With  respect  to  the  private  property  of  the  plaintiff,  the  evidence  does 
not  show  that  it  is  injuriously  affected.  Assume  the  fact  to  be  as  argued, 
that  the  soil  in  the  road  belongs  to  the  plaintiff,  there  is  nothing  at  present 
which  affects  him  with  any  injury  whatever.  There  might  have  been 
originally  some  inconvenience  produced  by  the  erection  of  the  posts  in 
December,  1860,  but  these  have  been  taken  down,  except  that  some  pipes 
or  wires  have  been  placed  in  the  soil  underneath  the  public  highway.  I 
do  not,  at  this  moment,  intend  to  express  any  opinion  whether  it  is  an  in- 
vasion of  his  private  rights  or  not ;  but  I  am  clear  that  there  is  no  irrepara- 
ble injury  to  him  which  requires  the  interposition  of  this  Court,  prior  to 
the  hearing  of  the  cause.  Whether  this  Court  will  then  do  any  thing  is 
another  matter,  but  this  Court  only  interferes  by  interlocutory  injunction 
to  prevent  property  from  injury  about  to  be  done  to  it ;  and  even  where 
the  injury  is  unquestionable,  as  was  laid  down  in  Deere  v.  Guest  (1 
Myl.  &  Cr.  516),  if  it  has  been  already  completed,  as  it  is  in  this  case,  the 
Court  does  not  interfere  by  way  of  interlocutory  judgment,  but  waits  until 
after  some  proceedings  at  law  have  been  taken,  before  it  will  interfere." 
The  Court  stated,  that  what  the  company  proposed  to  do  would  not  in- 
juriously affect  the  Baron's  property,  nor  would  the  work  already  done 
interfere  with  the  beneficial  enjoyment  of  his  property.  "  I  have  read  the 
affidavits  of  the  other  persons,  who  say  that  their  property  is  injured,  but 
nothing  is  more  clear  than  this  (I  am  keeping  distinct  the  questions  of  in- 
jury to  private  property,  and  the  injury  to  the  public),  that  one  man  can- 
not come  into  this  Court  and  complain  of  any  injury  affecting  the  property 
of  another  person.  That  other  person,  if  his  property  is  injuriously  affected, 
must  come  to  this  Court,  and  bring  forward  his  own  case,  and  request  the 
interposition  of  this  Court  to  protect  him  from  having  his  property  in- 
jured, or  injuriously  affected  by  the  acts  of  the  defendant.  So  far,  there- 
fore, as  the  information  and  bill  relates  to  private  property,  I  am  compelled 
to  confine  it  exclusively  to  the  property  of  the  plaintiff,  and  say  that 
he  has  not  shown  that  any  such  injury  is  inflicted  on  him  as  will  entitle 
him  to  an  injunction. 

[101] 


§  82  REMEDIES.  [PART  i. 

the  Court  would  not  grant  the  injunction,  but  the 
plaintiff  must  first  establish  his  right  at  law.     Thus, 


"  As  regards  the  public,  the  case  resolves  itself  into  a  question  of  nui- 
sance, and  upon  the  evidence  of  the  plaintiff,  it  seems  very  doubtful  whether 
there  is  any  nuisance  or  not  There  may  be  to  a  private  person  dam- 
num  cibsque  injuria,  which  will  support  an  action  and  get  nominal  damages, 
without  entitling  the  plaintiff  to  any  injunction ;  but,  with  respect  to  a 
nuisance,  there  must  be  some  injury  to  the  public  shown  to  exist  before 
any  injunction  can  be  granted.  Whether  it  be  shown  here,  I  express  no 
opinion  further  than  this,  that  the  Court  does  not  interfere  to  abate,  or 
to  prevent  the  continuance  of,  a  nuisance,  unless  it  is  clearly  shown  that 
there  is  an  injury  to  the  public,  which  is  not  done  here ;  and  in  that  case, 
the  Court  leaves  the  party  complaining  to  establish  the  fact  that  the  act 
done  is  a  nuisance  at  law  before  it  gives  its  aid  by  way  of  injunction. 

"  1  cannot,  therefore,  make  any  other  order  than  that  I  give  the  plain- 
tiff and  the  informant  leave  to  take  such  proceedings  at  law  as  they  may 
be  advised ;  and  I  allow  the  rest  to  stand  over." 

In  the  case  reported  in  30  Beav.  292,  the  cause  came  on  upon  a  motion 
for  a  decree. 

The  Master  of  the  Rolls  said,  "  The  case  depends  upon  a  legal  right, 
which  must  be  established  to  the  satisfaction  of  the  Court,  before  the 
equity  can  be  administered ;  without  it,  it  would  be  impossible  to  say 
that  either  the  acts  of  the  company  or  the  works  amounted  to  a  nuisance. 
The  information  and  the  bill  must  thereibre  stand  over,  in  order  that  the 
Attorney-General,  as  the  informant,  may  take  such  proceedings  at  law  as 
shall  be  thought  fit ;  and  also  in  order  to  enable  the  plaintiff  to  bring  such 
action  as  he  may  be  advised.  I  shall  therefore  retain  the  information  and 
bill  for  a  year,  and  reserve  the  costs,  until  the  result  of  the  proceedings  at 
law  be  known." 

In  the  case  of  The  City  of  Halifax  v.  The  Nova  Scotia  Elec.  Teleg. 
Co.,  Cochran's  Rep.  vol.  8,  part  1st,  Supreme  Court  of  Nova  Scotia, 
Michaelmas  Term,  1859,  it  appeared  that,  by  the  local  act  of  the  Prov- 
ince, the  company,  the  defendant,  had  the  right  to  erect  lines  along 
the  streets  and  highways,  so  as  not  to  interfere  with  the  right  to  travel 
thereon.  The  defendant  had  erected  the  posts  along  the  streets  of  the 
city  of  Halifax. 

Two  actions  had  been  brought  in  the  lower  court  for  breaking  the 
soil  of  the  street  without  permission ;  one  by  the  City  of  Halifax,  and  the 
other  by  the  Street  Commissioners  against  one  Quinn,  who  had  contracted 
with  the  defendants  to  erect  the  posts. 

Judgment  was  given  for  the  plaintiffs  in  both  cases,  and  an  appeal  was 
taken,  and  a  writ  of  injunction  was  moved  for,  the  motion  being  based 
[102] 


CHAP.  VII.]  REMEDIES.  §  83 

in  The  Electric  Telegraph  Co.  v.  Nott,1  the  question 
was,  whether  the  patent  right  of  the  plaintiff  had 
been  infringed  by  the  patent  right  of  the  defendant. 
The  plaintiff  had  filed  a  bill  for  injunction  to  restrain 
the  defendant  from  exercising  the  right  he  claimed 
under  his  patent.  The  question  was  not,  Has  the 
plaintiff  the  right  to  what  he  claims  ?  —  this  was  as- 
sumed to  be  so  ;  but,  whether  or  not  the  defendant's 
claim  infringed  upon  the  plaintiff's ;  and  the  parties 
were  left  to  settle  this  question  at  law. 

§  83.  An  injunction  will  not  be  granted,  upon  the 
application  of  a  telegraph^cnmpa^y,  tojirfivftnt  an  in- 
dividual iiainJx§Jismittin^jn^ssages  over  a  rival  line, 
the  cj^paia^i^jnaldng-^k*-^^ 

^wnjjiipjv^g  thp  more  ^ir^rt^fjj}^  tw**r-  "  There  is 
no  obligation  upon  a  person  sending  a  message,  to 
select  the  shortest  or  the  longest  line.  He  may  con- 
sult his  own  interest  or  choice  in  such  a  matter,  and 
he  incurs  no  responsibility  to  any  one,  unless  he  has 
entered  into  a  contract  to  forward  all  such  messages 
on  a  particular  line.  No  such  allegation  is  made  in 
the  bill,  and  there  is  no  charge  that  the  Western 
Telegraph  Company  has  been  molested  in  the  exercise 

upon  affidavits,  to  restrain  the  defendants  from  erecting  the  posts  until  the 
right  to  do  so  was  adjudicated  upon  by  the  full  Bench.  The  affidavits, 
however,  not  disclosing  that  the  streets  were  obstructed  by  the  erection 
of  the  posts,  the  application  was  refused ;  the  Court  holding  that  an  abso- 
lute necessity  must  be  shown  to  exist  for  an  injunction  of  the  Court,  other- 
wise the  injunction  could  not  be  granted.  The  affidavits  disclosed  the  fact 
that  the  public  peace  was  endangered  by  the  erection  of  the  posts,  a  num- 
ber of  the  poles  having  been  cut  down  by  the  citizens ;  but  the  Court  held 
this  was  not  sufficient  to  authorize  the  issuance  of  the  injunction. 

See  The  European  &  American  Submarine  Telegraph  Company  v. 
Elliott,  12  Law  Times  (N.S.),  416. 

1  11  Jurist  (O.S.)  p.  157. 

[103] 


§  86  REMEDIES.  [PART  i. 

of  its  patent  lights,  except  by  the  transfer  of  its  busi- 
ness to  other  lines  ;  and  it  is  not  alleged  that  these 
lines  are  prohibited  from  carrying  messages  by  reason 
of  their  contiguity  to  the  plaintiffs  lines." 1 

§  84.  Injunction  may  be  granted  against  the  com- 
pany, to  restrain  it,  where  it  is  proceeding  to  take 
lands  in  invitum,  contrary  to  the  mode  provided  by 
statute,  or  without  complying  with  whatever  condi- 
tions precedent  are  provided  by  statute,  or  the  charter 
if  specially  incorporated.2 

§  85.  Courts  of  Equity  will  decree  specific  perform- 
ance of  contracts  between  individuals  and  telegraph 
companies,  or  between  different  companies,  as  they 
would  in  cases  between  individuals.3 

§  86.  The  statutes  on  the  subject  of  telegraphs,  in 
several  of  the  American  States,  make  the  stockholders 
personally  liable  for  the  debts  of  the  company. 

By  the  statutes  of  Michigan  it  is  provided  in  refer- 
ence to  telegraph  companies,  "  that  the  stockholders 
of  every  association  organized  in  pursuance  of  this 
act  shall  be  jointly  and  severally  liable  for  the  pay- 
ment of  all  debts  and  demands  against  such  associa- 
tion which  shall  be  contracted,  or  which  shall  be,  or 
shall  become,  due  during  the  time  of  their  holding 
such  stock ;  and  no  stockholder  shall  be  proceeded 
against  for  the  collection  of  any  debt  or  demand 

1  The  Western  Telegraph  Company  v.  Penniman  &  King,  21  How. 
U.S.  460. 

3  River  Dun  Navigation  Co.  ».  North  Midland  Railway  Co.  1  Rail- 
way Cases  (Eng.),  135;  Hyde  v.  The  Great  Western  Railway  Co.  1  Rail- 
way Cases  (Eng.),  277. 

3  Storerv.  Great  Western  Railway,  3  Railway  Cases  (Eng.),  106;  Inge 
v.  Birmingham  W.  &  S.  V.  Railway  Co.  23  Eng.  Law  &  Eq.  R.  601. 
[104| 


CHAP.  VII.]  REMEDIES.  §  87 

against  such  association,  until  judgment  thereon  shall 
have  been  obtained  against  the  association,  and  an 
execution  on  such  judgment  shall  have  been  returned 
unsatisfied  in  whole  or  in  part,  or  unless  such  asso- 
ciation shall  be  dissolved." l  The  Virginia  statute 
is  the  same.2  There  is  a  similar  provision  in  the 
New  York  statutes,  but  with  the  further  stipulation 
that  "  the  liability  of  the  stockholder  shall  not  ex- 
ceed twenty-five  per  cent  in  amount  the  amount  of 
stock  held  by  him." 3  So  in  Maryland.4 

It  is  provided  by  the  New  Jersey5  and  Florida6 
statutes,  that  the  subscribers  to  the  capital  stock  of 
the  company  shall  not,  in  any  event,  be  responsible 
for  any  amount  beyond  their  subscriptions. 

The  statute  of  Wisconsin  provides  for  the  personal 
liability  of  the  stockholder  to  the  extent  of  his  stock, 
after  the  corporate  property  shall  have  been  sold,  and 
execution  returned  unsatisfied  in  whole  or  in  part ; 
but  this  liability  does  not  exist  for  debts  contracted 
after  he  has  transferred  his  stock ;  and,  that  no  person 
holding  the  stock  in  the  character  of  executor,  admin- 
istrator, guardian,  or  trustee,  or  as  collateral  security, 
shall  be  personally  liable  as  a  stockholder,  but  the  per- 
son pledging  the  stock  shall  be  considered  as  the  hold- 
er of  the  stock,  and  personally  liable  accordingly.7 

§  87.  Where   the   statute  makes   the   stockholder 

1  Compiled  Statutes  of  Michigan,  1857,  c.  70  (Sec.  2056),  §  8.     Ap- 
pendix T. 

2  General  Acts,  c.  149  (May  26,  1852),  §  9.     Appendix  A. 

3  Rev.  Stat  N.Y.,  edition  of  1859,  c.  18,  title  17,  §  10.     Appendix  AA. 

4  Code  of  1860,  art.  26,  §  1 14.     Appendix  R. 

5  Nixon's  Digest,  1861,  Telegraphs,  8.     Appendix  Z. 
8  Laws  of  Florida,  c.  781,  §  7.     Appendix  I. 

7  Revised  Statutes  1858,  c.  76,  §§  12,  13.     Appendix  LL. 

[105] 


§  88  REMEDIES.  [PART  i. 

personally  liable,  without  in  terms  confining  his 
liability  to  debts  created  during  the  time  he  was  a 
stockholder,  it  seems  to  be  an  unsettled  question 
whether  his  liability  would  extend  to  debts  created 
after  he  ceased  to  be  a  stockholder.1 

§  88.  In  some  of  the  States  the  consolidation  of 
telegraph  companies  is  provided  for  by  statute. 

In  Ohio  it  is  provided  that  where  two  or  more  tele- 
graph companies  desire  to  consolidate  themselves  into 
a  single  corporation,  they  may  do  so  in  the  same  man- 
ner, and  subject  to  the  same  rules,  as  provided  in  case 
of  railroad  companies.  The  statute  in  relation  to 
railroad  companies,  after  giving  the  details  of  the 
mode  of  organization  required,  provides,  that  the  new 
company  shall  have  all  the  rights,  privileges,  and 
franchises  of  the  original  companies,  and  be  subject 
to  their  liabilities,  and  "  all  the  debts,  liabilities,  and 
duties  of  either  company  shall  thenceforth  attach  to 
such  new  corporation,  and  be  enforced  from  the  same, 
to  the  same  extent,  and  in  the  same  manner,  as  if 
such  debts,  liabilities,  and  duties  had  been  originally 
incurred  by  it." 2 

The  New  York3  statute  provides  that   any  tele- 

1  Chesley  v.  Pierce  &  Sawyer,  32  N.H.  388 ;  where  it  is  held,  under  the 
statutes  of  New  Hampshire,  that  the  liability  is  confined  to  the  time  of 
being  a  stockholder.  See  on  this  subject  ^Moss  v.  Oakley,  2  Hill,  265 ; 
Curtis  v.  Harlow,  12  Met.  (Mass.),  3  ; 'Allen  v.  Sewall,  Sup.  Ct,  New  York, 
reported  in  2  Wend.  327 ;  but  reversed  in  6  Wend.  335,  by  Court  of 
Errors  &  Appeals. 

In  Deming  v.  Bull,  it  was  held,  under  the  charter,  that  those  who 
were  stockholders  at  the  date  of  the  note,  and  those  who  were  so  at  com- 
mencement of  suit,  were  jointly  liable.  10  Conn.  409. 

1  Revised  Statutes  of  Ohio  (1860),  §  48.     Appendix  CC. 

3  New  York  Revised  Statutes,  5th  edition  (1859),  vol.  2,  title  16,  §  15, 
Ch.  Corporations.     Appendix  AA. 
[106] 


CHAP.  VII.]  REMEDIES.  §  90 

graph  company  formed  or  incorporated  under  the 
telegraph  act  of  1848,  "  may  unite  with  any  other 
telegraph  company." 

It  appears  that  there  is  no  provision  in  the  New 
York  statute,  as  there  is  in  the  Ohio  statute,  provid- 
ing expressly  that  the  consolidated  company  shall  be 
liable  for  the  debts  of  the  original  companies ;  but 
only  authorizing  the  original  companies  to  "  unite." 

§  89.  The  English  authorities  hold  tha,t  the  con- 
solidated company  would  be  bound  for  the  obligations 
of  the  original  companies,  without  any  special  pro- 
vision.1 

The  provision  that  the  new  company  shall  have  the 
powers  and  privileges  of  the  original  companies,  con- 
fers on  the  new  company  the  privileges  of  either  of 
the  original  companies  to  the  extent  of  the  line  they 
occupied  before  the  consolidation :  so  held  in  case  of 
railroads.2 

§  90.  In  some  of  the  American  States  a  special 
remedy  is  provided  by  statute  for  the  ascertainment 
of  the  damages  to  parties  who  may  be  injured  by  the 
construction  of  telegraphs. 

In  a  majority  of  the  States,  however,  there  seems  to 
be  no  provision  on  the  subject,  probably  for  the  reason 
that  actual  damage  sustained  by  the  construction  of 
telegraph  lines  is  of  so  rare  occurrence. 

In  the  States  which  have  this  matter  regulated  by 

1  See  cases  cited  in  1  Am.  Railway  Cases,  96  ;  Phil.,  Wilm.,  &  Bait. 
R.R.  Co.  v.  Howard,  13  How.  U.S.  307,  where  it  is  held  that  in  an  action 
against  the  consolidated   company  upon  a  contract  made  by  one  of  the 
original  companies,  the  admission  or  act  of  such  original  company  will 
bind  the  consolidated  company  by  way  of  estoppel  in  pais. 

2  Phil.  &  Wil.  R.R.  Co.  u/State  of  Maryland,  10  How.  U.S.  376. 

[107] 


§91  REMEDIES.  [PART  i. 

statute,  appraisers,  or  commissioners,  or  juries  of 
view,  are  designated  for  the  purpose  of  appraising 
the  damage  sustained. 

§  91.  The  New  York  statute  provides  that  if  any 
person  over  whose  lands  the  telegraph  line  shall  pass, 
upon  which  the  posts,  piers,  or  abutments  shall  be 
placed,  shall  consider  himself  aggrieved  or  damaged 
thereby,  the  County  Court  of  the  county  within  which 
the  lands  are,  on  application  by  such  person,  and  on 
notice  to  the  company,  shall  appoint  five  discreet  and 
disinterested  persons  as  commissioners,  who  shall  be 
sworn,  and  they,  or  a  majority  of  them,  shall  make  a 
just  and  equitable  appraisal  of  all  the  loss  or  damage 
sustained  by  the  applicant,  duplicates  of  the  appraise- 
ment to  be  reduced  to  writing,  and  signed  by  them,  or 
a  majority  of  them,  one  copy  to  be  delivered  to  the 
applicant,  and  the  other  to  the  company  on  demand ; 
and  in  case  any  damage  shall  be  assessed  to  the  ap- 
plicant, the  company  shall  pay  it,  with  costs  of 
appraisement,  which  are  to  be  ascertained  in  the 
award.1 

The  Missouri  statute  is  similar,  except  it  provides 
for  three  instead  of  five  commissioners.2  The  statute 
of  Michigan3  is  the  same  as  in  Missouri,  except  it  pro- 
vides that  the  application  shall  be  made  to  the  Circuit 
Court  of  the  district  in  which  the  lands  lie. 

The  statute  of  Virginia  is  the  same  as  in  New 
York,  except  it  provides  the  application  to  be  made 

1  Revised  Statutes,  edition  of  1859,  c.  18,  title  17,  §  6.      Appendix 

AA. 

*  Revised  Statutes  1855,  c.  156,  Telegraph  Companies,  §4.  Appendix 
W. 

3  Compiled  Laws  of  Michigan,  1857,  c.  70,  §  6.     Appendix  T. 
[108] 


CHAP.  VII.]  REMEDIES.  §  91 

"  in  the  County  Court,  or  Corporation  Court  of  the 
county." l 

The  statute  of  California 2  is  also  the  same,  except 
that  the  application  is  to  the  County  Court,  who  shall 
appoint  three  commissioners,  and  with  the  further 
stipulation  that  in  no  case  shall  the  applicant  have 
damages  when  application  is  not  made  within  three 
months  after  the  erection  of  the  line. 

The  Connecticut  statute 3  requires  the  appraisal  to 
be  approved  by  the  Court,  and  also  that  a  person 
entitled  to  nominal  compensation,  who  will  not  yield 
the  same,  may  demand  it  by  leaving  a  written  no- 
tice at  some  telegraph  office  connected  with  the 
line ;  and,  if  the  parties  cannot  agree,  the  owners  of 
the  line  shall  make  application  for  appraisal,  which 
shall  be  made  in  the  same  manner  as  in  the  other 
case. 

The  Illinois  statute4  is  substantially  the  same  as 
the  Michigan  statute. 

By  the  statute  of  Massachusetts 5  the  application  is 
to  be  made  to  the  selectmen  of  the  town,  or  mayor 
and  aldermen  of  the  city,  within  three  months  after 
construction  of  the  line ;  the  selectmen  shall  appoint 
appraisers,  who  shall  proceed  as  in  New  York  stat- 
ute, and  also,  if  they  find  the  party  has  suffered  no 
damage,  he  shall  pay  the  costs ;  it  is  further  pro- 

1  General  Acts,  1852,  c.  149,  §  6.     Appendix  KK. 

2  Wood's  Digest  of  1861,  92.  Telegraph  Companies,  article    3365, 
§  151.     Appendix  F. 

3  Revision  of  1866,  title  7,  c.  7,  §§  567,  568.     Appendix  G.- 

4  Revision  of  1858  (Sess.  Laws,  Feb.  12,  1853,  p.  35),  §  6.      Appen- 
dix K. 

§  Supplement  of  1854  to  Revised  Statutes,  c.  93,  §  4.     Appendix  S. 

[109] 


§  91  REMEDIES.  [PART  i. 

vidcd  that  the  party  may  have  the  question  submitted 
to  a  jury,  to  be  determined  as  in  case  of  town  and 
private  ways.  If  the  jury  increase  the  damages,  the 
company  shall  pay  them  and  costs  ;  otherwise  the 
charges  to  be  paid  by  the  party. 

The  Vermont  statute l  provides  for  the  appraise- 
ment of  damages  by  the  selectmen  of  a  town,  or  mayor 
and  aldermen  of  a  city ;  the  same  to  be  paid  by  the 
company  before  any  erections  are  made ;  the  decision 
of  the  selectmen  or  mayor  and  aldermen  to  be  final. 

The  Iowa  statute 2  provides  for  the  empanelling  of 
a  jury,  who  shall  submit  their  report,  and  shall  set 
apart,  by  metes  and  bounds,  the  lands  to  be  taken, 
and  assess  the  damages  occasioned  thereby ;  and  no 
deduction  shall  be  made  for  any  supposed  benefit  to 
the  owner  from  the  erection  of  the  works.  A  writ  of 
inquiry  may  issue  in  vacation  to  ascertain  damages. 
When  the  damages  are  paid  in  the  mode  pointed  out, 
the  Court  shall  decree  a  conveyance  of  the  land  to 
the  company. 

The  Maryland  statute3  provides  that  a  jury  shall 
be  summoned  before  a  magistrate,  who  shall  make 
their  appraisal,  and  return  it  to  court  for  confirma- 
tion, which  shall  be  done  unless  cause  shown. 

The  company  must  pay  the  damages  before  pro- 
ceeding to  erect  its  line. 

In  Ohio,4  the  proceeding  to  determine  damages,  and 
for  condemnation  of  land,  may  be  instituted  in  any 

1  Revision  of  1863,  c.  88,  §  5.     Appendix  RR, 

1  Revision  of  1860,  c.  55  (Code,  c.  46),  §  1282  (763),  1294  (775). 
Appendix  M. 

8  Code  of  1860,  art.  26,  §§  109-112.     Appendix  R, 
«  Acts  of  1852  (passed  May  1,  1852),  §  4.     Appendix  CC. 
[110] 


CHAP.  VII.]  REMEDIES.  §  92 

county  where  the  land  lies;  and  this  proceeding 
may  embrace  other  lands,  although  lying  out  of  the 
county. 

In  Oregon,1  the  party  and  the  telegraph  company 
each  select  an  appraiser,  and  they  shall  select  a  third, 
all  of  them  to  view  the  land  and  assess  the  damages, 
which  shall  be  final ;  the  award,  sworn  to,  must  be 
filed  in  the  Clerk's  office  of  the  county  where  made.2 
Damages  must  be  claimed  within  twelve  months  after 
erection  of  line.  The  Nevada3  statute  provides  for  the 
selection  of  appraisers  in  the  same  way ;  and  if  the 
company  tenders  the  amount  appraised,  it  may  proceed 
with  its  line,  with  right  of  appeal  to  the  party,  any 
time  within  three  months  after  the  appraisement,  to 
the  District  Court  of  the  district  where  the  lands 
lie. 

In  Ohio,  it  has  been  held,  that  where  it  is  provided 
that  damages  shall  be  assessed  by  a  jury  (and  this  is 
guaranteed  by  the  Constitution  of  that  State),  a  jury 
of  twelve  persons  is  presumed  to  be  intended.4 

§  92.  Such  special  remedy  provided  by  statute  is 
exclusive,  and  an  action  at  common  law  for  injuries 
which  should  have  been  properly  embraced  in  the 
appraisement  cannot  be  maintained,-  nor  would  the 
party  be  allowed  to  show  that  such  injuries  were  not 
in  fact  included  in  the  assessment,  as  it  will  be  con- 
clusively presumed  the  appraisers  did  their  duty,  and 

1  Compilation  of  1866,  c.  54,  §  3.     Appendix  DD. 

2  The  award  is  a  judicial  act,  and  unless  appealed  from,  becomes  res 
adjudicata ;  Vermont  Cent.  R.R.  Co.  v.  Baxter,  22  Vt.  365 ;    Clark  v. 
Boston,  Concord,  &  Montreal  R.R.  Co.  4  Foster,  114. 

3  Laws  of  Nevada,  c.  1 7  (act  of  Feb.  9,  1866),  §  6.     Appendix  X. 

4  Lamb  v.  Lane,  4  Ohio  State,  167. 

[Ill] 


§  94  REMEDIES.  [PART  i. 

it  can  only  be  made  to  appear  that  they  did  not  do  so, 
in  a  direct  proceeding  to  set  aside  the  award.1 

If  there  were  fraud  in  the  proceedings,  however,  it 
would  be  different. 

The  fair  market  value  of  the  land  taken  —  if  land 
be  absolutely  and  exclusively  appropriated  by  the  com- 
pany in  constructing  its  line  —  is  the  measure  of  dam- 
ages to  be  estimated  in  the  appraisement. 

§  93.  The  same  general  principles  which  will  deter- 
mine questions  of  consequential  damages  in  case  of 
railways,  would  be  applicable  to  telegraph  companies  ; 
but  cases  will  be  of  such  rare  occurrence  that  they 
will  not  be  considered  here  ;  the  reader  will  find  them 
treated  of  in  the  standard  works  on  railroad  law. 

If  there  be  fraud  in  the  proceedings  upon  which 
the  award  of  the  appraisers  is  based,  or  if  their  assess- 
ment is  excessive,  or  improper  evidence  be  admitted, 
or  the  award  is  based  upon  a  mistaken  view  of  the 
law,  it  will  be  set  aside.2 

§  94.  In  those  States  where  the  statute  does  not 
expressly  provide  that  notice  must  be  given  to  the 
company,  notice  should  nevertheless  be  given  to  make 
the  proceedings  valid,  unless  the  company  by  its 
appearance  waives  it.3 

1  New  Albany  &  Salem  R.R.  Co.  v.  Connelly,  7  Indiana,  35 ;  Furniss 
v.  Hudson  River  R.R.  Co.  5  Sandf.  551 ;  Dearborn  v.  Boston,  Concord,  & 
Montreal  R.R.  Co.  4  Foster,  179 ;  Hueston  t>.  Eaton  &  Hamilton  R.R.  Co. 
4  Ohio  State,  685. 

1  Troy  &  Boston  R.R.  Co.  v.  Lee,  13  Barb.  169;  Penn.  R.R.  Co.  ». 
Heister,  8  Pa.  St.  R.  445. 

*  Cruger  v.  Hudson  River  R.R.  Co.  2  Kernan,  190. 

[112] 


PART    II. 


OF  THINGS  PECULIAR  TO  TELEGRAPH  COMPANIES. 


PAKT    II. 

OF  THINGS  PECULIAR  TO  TELEGEAPH  COMPANIES. 


CHAPTER  I. 

THE      NATURE      OF      THE      ENGAGEMENT      OF     TELEGRAPH 
COMPANIES    IN    RESPECT    TO    MESSAGES. 

§  95.  PROMPT  and  speedy  communication  between 
different  localities  is  one  of  the  most  urgent  wants  of  the 
present  age.  The  art  of  telegraphing  has  attained  such 
perfection  that  time  and  space  are  no  longer  estimated 
as  barriers  to  an  interchange  of  ideas.  Telegraphing 
has  become  alike  necessary  in  war  and  peace ;  in 
diplomacy,  commerce,  and  private  negotiations.  It 
has  become  important  in  the  dissemination  of  public 
intelligence.  It  will  doubtless  become  one  of  the 
most  valuable  auxiliaries  in  the  administration  of 
justice. 

To  meet  this  demand,  telegraph  companies  are 
chartered,  and  they  engage  to  subserve  the  public  in- 
terests by  transmitting  intelligence. 

They  receive  written  messages  at  one  place,  and 
undertake  to  deliver  the  same  words  or  symbols  to  the 
party  addressed,  at  another  place. 

[115] 


§  96  NATURE    OF   THE    ENGAGEMENT  [PART  II. 

This  is  a  bailment.  All  other  persons  or  corpora- 
tions who  render  similar  services  in  the  discharge  of  a 
duty  to  the  public,  are  common  carriers. 

In  considering  the  nature  of  this  engagement,  it  is 
proper  to  leave  out  of  view  the  appliances  used  in  its 
performance.  The  message  is  to  be  delivered  with 
literal  accuracy.  Nothing  is  to  be  changed ;  no  ad- 
ditional value  is  to  be  imparted  by  the  bailee.  There 
is  no  occasion  for  care,  skill,  and  labor  upon  the  mes- 
sage, except  as  to  the  transmission,  because  it  is  the 
entire  and  finished  work  of  the  sender. 

Locatio  operis  faciendi  has  no  place  in  a  correct 
definition  of  the  nature  of  this  engagement.  The 
company  is  not  even  bound  to  accept  a  message,  writ- 
ten in  any  other  than  the  national  or  statutory  alpha- 
bet, although  they  have  no  right  to  require  that  it 
should  be  written  in  the  national  or  statutory  language. 
The  employer  may  combine  letters  as  he  wishes,  and 
the  company  is  not  at  liberty  to  translate,  change  the 
collocation,  or  correct  the  orthography. 

The  engagement,  then,  is  to  receive,  transmit,  and 
deliver,  according  to  directions,  a  prescribed  form  of 
letters  and  words,  commonly  called  a  message. 

§  96.  This  work  is  accomplished  with  marvellous 
rapidity  by  means  of  electricity,  operated  and  con- 
trolled through  the  instrumentality  of  batteries,  wires, 
etc.  Acting  under  the  authority  of  the  State,  they  are 
secured  in  certain  rights,  and  are  burthened  with  the 
performance  of  corresponding  duties. 

The  subsequent  chapters  will  be  devoted  to  the 
discussion  of  their  rights  and  duties  in  their  relations 
to  the  public ;  the  extent  of  their  responsibility  in 

[116] 


CHAP.  I.]  IN    RESPECT    TO    MESSAGES.  §  97 

respect  to  messages ;  the  use  of  their  lines  by  third 
persons  as  a  medium  of  contract ;  their  responsibility 
for  messages  transmitted  over  connecting  lines ;  the 
rules  of  evidence  affecting  them  and  their  business ; 
the  rule  of  compensation  in  case  of  damage  incurred  ; 
and  the  extent  of  their  responsibility  criminally,  in 
respect  to  messages. 

§  97.  We  have  called  the  delivery  of  the  message 
to  the  company  for  transmission,  a  bailment.1  It  is 
possible  to  suppose  a  case  where  the  message  is  dic- 
tated orally  in  the  hearing  of  an  operator,  and  he 
may  communicate  it  to  another  operator  at  a  distant 
station,  who  might  deliver  it  to  the  party  addressed, 
without  the  communication  ever  having  been  reduced 
to  writing.2 

But  this  is  not  the  mode  in  which  telegraph  com- 
panies undertake  to  transmit  messages,  and,  so  far  as 
we  know,  all  their  rules  and  regulations  are  in  refer- 
ence to  written  messages.  Indeed,  in  the  United 
States,  under  the  provisions  of  the  Stamp  Act,  they 
had  no  right  to  transmit  an  oral  message. 

Their  undertaking,  therefore,  is  in  relation  to  writ- 
ten messages.  Such  messages  have  a  distinct,  legal 
entity.  If  the  original  idea  of  bailment  was  predi- 
cated upon  things  tangible,  —  things  of  inherent 


1  Mr.  Justice  Story  gives  the  following  definition  of  bailment:  It  is  "  a 
delivery  of  a  thing  in  trust  for  some  special  object  or  purpose,  and  upon  a 
contract,  express  or  implied,  to  conform  to  the  object  or  purpose  of  the 
trust."      Story  on  Bailments,  §  2. 

2  In  Durkee  v.  Vermont  Central  R.R.  Co.  29  Vt.  R.  127,  it  is  said, 
"  A  telegraph  communication  ordinarily  is  in  writing  in  the  vernacular  at 
both  ends  of  the  line,  and  must  of  necessity  be  so  at  the  last  end,  unless 
the  person  to  whom  it  is  addressed  is  in  the  office  at  the  time." 

[117] 


§  97         NATURE  OF  THE  ENGAGEMENT     [PART  II. 

value,  —  then,  we  think  it  may  be  safely  assumed, 
that  written  messages  have  such  a  tangible  existence 
as  will  make  them  susceptible  of  actual  bailment. 

They  have  all  the  distinctive  traits  or  qualities  of 
unpublished  manuscripts  and  private  letters,  and  rest 
upon  the  same  foundation  as  that  which  sustains  every 
other  species  or  description  of  property  ;  namely,  "  the 
right  which  every  man  has  to  the  exclusive  possession 
and  control  of  the  products  of  his  own  labor." ] 

But  outside  of  all  design  of  authorship  or  publi- 
cation or  literary  property,  writers  of  private  letters 
possess  such  a  right  of  property  in  them,  that  they  can 
never  be  published  without  their  consent,  unless  re- 
quired by  purposes  of  justice.2  Literary  compositions 
and  ordinary  letters  of  friendship  or  business,  have  in 
them  precisely  the  same  elements  of  property  ; 3  and 
the  protection  which  they  receive  from  the  courts  is 
founded  upon  natural  justice,  and  "  a  right  of  prop- 
erty in  them."  Telegraphic  messages  are  letters 
forwarded  in  part  by  electricity.  They  are  the  sub- 
ject of  a  variety  of  valid  contracts,  and  are  recog- 
nized as  chattels  to  all  intents  and  purposes,  by  the 
statutes  authorizing  and  regulating  telegraph  compa- 
nies, as  well  as  by  the  parties  contracting  about  them. 
They  are  received  into  corporal  and  exclusive  posses- 
sion, and  held  by  the  company  for  transmission,  and 
also  as  instruments  of  evidence  for  various  purposes. 
They  were  stamped  as  other  documents,  and  are 
frequently  copyrighted.  They  may  be  destroyed  or 

1  Curtis  on  Copyright,  84. 
*  Gee  v.  Pritchard,  2  Swanst.  418. 
3  Woolsey  v.  Judd,  11  How.  Pract  R.  49. 
[118] 


CHAP.  I.]  IN    RESPECT    TO    MESSAGES.  §  98 

stolen,1  and  the  trespasser  will  incur  civil  and  crim- 
inal responsibility.  When  transmitted  over  the  wires, 
and  reduced  to  writing  again  at  the  office  of  destina- 
tion, that  message,  by  contract,  has  the  same  legal 
entity  as  the  first ;  and  the  rights  of  the  respect- 
ive parties  in  relation  to  it  are  the  same.  It  is  as 
susceptible  of  loss  or  destruction  then,  as  the  origi- 
nal or  any  other  chattel.  By  a  faithful  performance 
of  its  engagement  in  reference  to  messages,  the  com- 
pany may  acquire  profits,  and  incur  liability  in  dam- 
ages in  case  of  failure. 

§  98.  It  superinduces  no  hardship  or  injustice  for 
the  courts  to  enforce  obligations  predicated  upon  the 
idea  that  they  are  the  subject-matter  of  bailment.  If 
it  could  be  denied  that  this  engagement  of  telegraph 
companies  was  in  reference  to  things  having  a  tangi- 
ble existence  and  value,  yet  the  company  would  enter 
into  the  same  engagement  in  reference  to  them,  as  that 
which  we  say  is  applicable  to  written  messages.  In 
either  view,  the  company  is  bound  to  the  same  care, 
diligence,  and  skill ;  and  would  be  alike  responsible 
for  losses  occasioned  by  default.  Error  in  transmit- 
ting a  message  is  loss.  Changing  a  letter  or  a  symbol 
may  destroy  the  meaning  of  the  writer,  so  that  the 


1  But  see  Ellis  v.  Am.  Teleg.  Co.  13  Allen,  226,  where  it  is  said, 
"  No  property  is  committed  to  his  hands.  He  has  no  opportunity  to  vio- 
late his  trust  by  his  own  acts  of  embezzlement,"  etc. ;  which  follows  John- 
son, J.,  who  said,  in  45  Barb.  274,  that  there  "is  nothing  in  the  nature  of 
property  which  could  be  converted  or  destroyed,  or  form  the  subject  of 
larceny,  oroftortious  caption  and  appropriation." 

In  Shields  v.  The  Wash.  &  N.  O.  Teleg.  Co.  it  was  held,  that  in  that 
particular  case  the  message  had  no  appreciable  value.  We  do  not  re- 
member any  other  authorities  sustaining  this  view. 

[119] 


§  99  NATURE    OF    THE    ENGAGEMENT  [PART  II. 

person  addressed  may  be  actually  misinformed  and 
misled. 

The  loss  of  the  message  may  be  as  complete  by 
error  in  the  transmission,  as  loss  of  goods  in  the 
hands  of  the  carrier  caused  by  fire. 

The  engagement  of  telegraph  companies  is  to  re- 
ceive and  to  transmit  and  to  deliver,  according  to 
directions,  a  prescribed  form  of  letters  and  words. 
This  engagement  is  in  the  nature  of  the  bailment  lo- 
catio  operis  mercium  vehendarum,  and  belongs  more 
properly  to  this  head  than  to  any  other  class  of  bail- 
ments. 

§  99.  The  nature  of  their  engagement  has  been 
considered  in  several  cases  in  the  American  courts. 

In  Birney  v.  N.  Y.  &  Wash.  Printing  Teleg.  Co.1 
it  is  said,  "  What  does  a  telegraph  company  dol  It 
receives  a  written  message  for  transmission.  It  uses 
machinery  to  reproduce  the  words  of  that  message  at 
a  distant  point,  either  by  direct  copying  of  it,  under 
some  alphabetical  system,  or  by  translating  the  mes- 
sage into  certain  symbols,  which,  marked  upon  paper 
at  a  distant  point,  are  then  translated  into  our  ordi- 
nary language.  It  cannot  be  said  to  be  even  in  the 
manual  charge  of  the  message  so  transmitted,  during 
its  transmission.  It  relies  on  machinery,  and  upon 
threads  of  communication,  which  are  liable  to  break 
or  interruption,  through  accident,  influence  of  the  cli- 
mate, wantonness,  or  malice.  These  circumstances 
make  it  impossible  for  the  company  to  remain  in 
actual  practical  custody  of  its  line.  .  .  . 

"  This  telegraph  company  is  not  a  common  carrier, 

1  18  Md.  R.  341. 
[120] 


CHAP.  I."]  IN    RESPECT    TO    MESSAGES.  §  101 

but  a  bailee,  performing,  through  its  agents,  a  work 
for  its  employer,  according  to  certain  rules  and  regu- 
lations, which,  under  the  law,  it  has  a  right  to  make 
for  its  government."1 

§  100.  In  Parks  v.  Alta  Cal.  Teleg.  Co.,2  it  is  said 
that  the  rules  which  govern  the  liability  of  telegraph 
companies  are  not  new.  "  They  are  old  rules  applied 
to  new  circumstances.  Such  companies  hold  them- 
selves out  to  the  public  as  engaged  in  a  particular 
branch  of  business  in  which  the  interests  of  the  public 
are  deeply  concerned.  They  propose  to  do  a  certain 
service  for  a  given  price.  There  is  no  difference,  in 
the  general  nature  of  the  legal  obligation  of  the  con- 
tract, between  carrying  a  message  along  a  wire,  and 
carrying  goods  or  a  package  along  a  route.  The 
physical  agency  may  be  different;  but  the  essential 
nature  of  the  contract  is  the  same." 

§  101.  In  De  Eutte  v.  N.Y.,  Albany,  &  Buf.  Teleg. 
Co.,3  the  Court  say,  "  The  business  of  transmitting 
messages  by  means  of  the  electric  telegraph  is,  like 
that  of  common  carriers,  in  the  nature  of  a  public 
employment;  for  those  who  engage  in  it  do  not  under- 
take to  transmit  messages  only  for  particular  persons, 
but  for  the  public  generally.  They  hold  out  to  the 
public  that  they  are  ready  and  willing  to  transmit  in- 
telligence for  any  one,  upon  the  payment  of  their 
charges,  and  when  paid  for  sending  it,  it  forms  no  part 
of  their  business  to  inquire  who  is  interested  in,  or 
who  is  to  be  benefited  by,  the  intelligence  conveyed. 

1  But  see  the  discussion  as  to  the  extent  of  their  responsibility,  post, 
c.  4,  §  199  el  seq.  2  13  Cal.  R.  422. 

3  Court  of  Common  Pleas,  New  York,  1  Daly,  547. 

[121] 


§   102  NATURE    OF    THE    ENGAGEMENT  [PART  II. 

That  becomes  material  only  where  there  has  been  a 
delay  or  a  mistake  in  the  transmission  of  a  message." 

And  again :  "  Like  the  business  of  common  carri- 
ers, the  interests  of  the  public  are  so  largely  incor- 
porated with  it,  that  it  differs  from  ordinary  bailments, 
which  parties  are  at  liberty  to  enter  into  or  not,  as 
they  please.  In  this  State  it  is  made  the  duty  of 
telegraph  companies  by  statute  to  transmit  despatches 
from  and  for  any  individuals  with  impartiality  and 
good  faith,  upon  the  payment  of  their  usual  charges  j1 
a  duty  which  would  arise  from  the  nature  of  the  busi- 
ness, even  if  there  were  no  statute  upon  the  subject" 

The  Supreme  Judicial  Court  of  Massachusetts,  in 
the  case  of  Ellis  v.  American  Tel.  Co.,2  rests  the 
public  nature  of  their  employment  upon  the  statute. 

§  102.  In  Leonard  &  Burton  v.  N.Y.,  Alb.,  &  Buf. 
Teleg.  Co.,3  the  Court  say,  "It  must  be  assumed  that 
the  liability  of  telegraph  companies  in  respect  to  the 
accurate  transmission  and  faithful  delivery  of  mes- 
sages rests  entirely  upon  contract,  and  that  they  are 
not  in  the  situation  of  innkeepers,  common  carriers, 
and  the  like,  upon  whom  legal  duties  rest,  resulting 
from  their  occupation  and  profession,  and  who  owe  a 
duty  to  the  public,  irrespective  of  their  engagements 
in  particular  instances."  The  statement  in  this  case, 
that  telegraph  companies  owe  no  duties  to  the  public, 
does  not  seem  to  have  been  well  considered,  and  is  not 
sustained  by  either  principle  or  authority.4 


1  Laws  of  New  York,  1848,  p.  395. 
8  13  Allen,  226. 

8  In  Supreme  Court  of  New  York.     Not  yet  reported. 
4  The  contrary  doctrine  has  been  expressly  announced  in  Parks  v. 
[122] 


CHAP.  I.]  IN    RESPECT   TO    MESSAGES.  §   102 

As  we  shall  hereafter  see,  there  is  an  obligation  rest- 
ing upon  them  irrespective  of  contract,  and  which 
arises  from  the  public  nature  of  their  employment.1 

We  will  consider  in  a  subsequent  chapter  to  what 
extent  there  is  analogy  between  telegraph  companies, 
in  respect  to  the  transmission  and  delivery  of  mes- 
sages, and  common  carriers  of  goods.2 

Alta  Cal.  Teleg.  Co.  13  Cal.  R.  422  ;  De  Rutte  v.  N.  Y.,  Alb.,  &  Buffalo 
Teleg.  Co.,  Court  of  Common  Pleas,  New  York,  1866,  1  Daly,  547;  N. 
Y.  &  Wash.  Prin.  Teleg.  Co.  v.  Dryburg,  35  Pa.  St.  R.  298 ;  The  West- 
ern Union  Teleg.  Co.  v.  Carew,  15  Mich.  R.  525. 

1  See  post,  c.  2,  §  123,  et  seq. 

2  See  post,  c.  4,  §  199,  et  seq. 

[123J 


§104  RIGHTS    AND    DUTIES  [PART   II. 


CHAPTER   II. 

RIGHTS    AND    DUTIES    OF   TELEGRAPH    COMPANIES. 

§  103.  THE  rights  and  obligations  of  telegraph 
companies  arising  out  of  their  relation  to  the  sender 
of  the  message,  will  be  considered  in  the  succeeding 
chapter.  In  this  one  we  propose  to  consider  that 
class  of  rights  and  duties  which  attach  to  them,  uncon- 
nected with  specific  contracts  between  them  and  third 
persons,  or,  rather,  those  which  do  not  necessarily  de- 
pend upon  the  existence  of  such  contracts. 

§  104.  RIGHTS.  —  And,  first,  we  may  state  that  a 
telegraph  company  has  the  right  to  make  reasonable 
rules  and  regulations  for  the  proper  conducting  of  its 
ordinary  telegraphing  business. 

This  power  is  conferred  directly  by  statute  in  Eng- 
land, Canada,  and  in  many  of  the  American  States 
which  have  general  laws  on  the  subject  of  telegraphs ; l 
and  a  similar  provision  will  probably  be  found  in  all 
private  acts  of  incorporation.2  But  independent  of 
express  statutory  authority,  they  have  this  right3  with- 
in the  limits  of  their  charters,  and  subject  to  the  con- 
stitution and  public  laws  of  the  land.  There  is  a 

1  See  Appendix  B,  F,  G,  I,  K,  R,  T,  V,  KK,  LL. 

2  The  Elec.  Teleg.  Co.'s  Act,  16  &  17  Viet.  c.  203,  §  66. 

3  Me  Andrew  v.  The  Elec.  Teleg.   Co.  33  Eng.  Law  &  Eq.  R.  180; 
Angell  &  Ames  on  Corp.  §  325. 

[124] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §   104 

class  of  rules,  however,  denominated  by-laws,  which 
are  usually  reduced  to  proper  form,  adopted  by  the 
corporate  authorities,  and  published  to  all  the  world 
as  governing  the  property  and  affairs  of  the  corpora- 
tion. There  are  other  rules  and  regulations  peculiar 
to  telegraph  companies,  intended  to  be  restrictive  of 
their  responsibility  to  third  parties  in  respect  of  mes- 
sages, which  are  designed  to  become  terms  of  their 
contracts.  These  by-laws,  and  such  rules  as  those  just 
mentioned,  are  not  valid,  if  they  conflict  with  the  con- 
stitution and  statutes  of  the  country  or  state  where 
the  corporation  exists;  nor  if  they  violate  common 
law  or  public  policy.1 

Whether  such  by-laws  and  rules  as  these  are  rea- 
sonable or  not,  is  a  question  for  the  Court  only ; 2  and 

1  Angell  &  Ames  on  Corp.  §  332. 

2  The  question  of  reasonableness  was  raised  in -the  McAndrew  case  in 
the  pleadings,  the  replication  denying  that  it  was  a  reasonable  regulation 
within  the  meaning  of  the  act;  and  the  Court  said,  "  The  question  will  be 
aye  or  no,  is  this  particular  regulation  or  condition  reasonable  ?  "     Thus 
it  was  treated  and  decided  as  a  question  of  law  for  the  Court.    It  was  fur- 
ther observed  that  in  no  event  could  the  company  protect  itself  against 
gross  negligence,  by  means  of  this  rule.     Thus  the  jury  would  pass  upon 
or  apply  the  rule  to  the  facts  in  the  case. 

In  Birney's  case  the  question  was  not  raised  in  the  pleadings,  but  the 
company  defended  in  evidence  under  its  rules.  The  Court  said,  "  While 
we  give  full  force  and  effect  to  the  rules  and  regulations  of  the  appellee  in 
a  legal  construction  of  them,  we  deem  it,"  etc. 

The  Court,  in  Ellis  v.  Am.  Teleg.  Co.  13  Allen,  226,  say,  "  We  are  then 
brought  to  the  real  question  on  which  the  decision  of  this  case  must  depend, 
and  that  is,  whether  the  rule  on  which  the  defendants  relied  in  defence  of  the 
plaintiff's  claims  is  a  just  and  reasonable  one,  such  as  they  had  a  right  to 
prescribe,  and  by  which  the  plaintiff  was  bound  in  the  reception  of  the 
message  which  they  transmitted  to  him.  Upon  this  point  we  can  entertain 
no  doubt.  We  are  not  called  on  in  this  case  to  determine  whether  all  the 
conditions  and  stipulations  are  valid  and  binding,  which  were  set  forth  in 
the  printed  paper  on  which  the  message  was  written  by  the  sender,"  etc. 
This  seems  to  dispose  of  the  whole  matter  as  a  question  of  law. 

[125] 


§  104  RIGHTS    AND    DUTIES  [PART  II. 

how  far  they  may  serve  to  limit  the  company's  liabil- 
ity, depends  upon  the  extent  to  which  they  are  incor- 

Inthe  case  of  The  Western  Union  Teleg.  Co.  ».  Carew,  15  Mich.  R. 
525,  the  Court  say  that  such  a  rule  "  must  be  considered  highly  reasona- 
ble;" and  even  further,  that  "the  natural  inference  would  be,  that  the 
employer  knew  and  assented,  or  intended  to  assent,  to  the  rule,  whatever 
it  might  be." 

It  is  said  in  Campc.  Western  Union  Teleg.  Co.  1  Met  (Ky.)  R.  164, 
"  This  regulation,  considering  the  accidents  to  which  the  business  is  liable, 
is  obviously  just  and  reasonable."  This  was  on  petition  in  the  Chancery 
Court. 

This  and  McAndrew's  case  are  cited  approvingly  in  Breese  &  Mum- 
ford  v.  United  States  Teleg.  Co.  45  Barb.  274,  which  was  a  controversy 
without  action,  submitted  under  the  N.Y.  Code. 

In  all  these  cases  the  question  is  disposed  of  without  reference  to  the 
province  of  the  jury. 

Vedder  v.  Fellows,  20  N.Y.  R.  126,  was  upon  the  reasonableness  of  a 
regulation  requiring  a  passenger  to  surrender  his  ticket,  etc.  The  judge 
charged  the  jury  that  in  his  opinion  the  rule  was  unreasonable  ;  yet  he 
should  leave  that  question  to  them,  and  they  were  at  liberty  to  differ  from 
him.  The  Court  of  Appeals  said,  "  There  being,  then,  no  proof  of  any 
actual  inconvenience  to  passengers,  from  compliance  with  the  regulation, 
the  question  as  to  its  reasonableness  and  consequent  validity  must  depend 

upon  its  intrinsic  character.  That  is  generally  a  question  of  law 

There  are  strong  reasons  why  the  reasonableness  of  railroad  regulations 
should,  in  the  absence  of  any  positive  proof  as  to  their  effect,  be  submitted 
to  the  Court  as  a  question  of  law,  rather  than  to  the  jury  as  one  of  fact.  .  .  . 
What  one  jury  might  deem  an  inconvenient  rule,  another  might  approve 
as  judicious  and  proper.  There  would  be  no  uniformity." 

Day  v.  Owen,  5  Mich.  R.  520,  was  an  action  against  a  carrier  for 
refusing  to  allow  plaintiff  cabin  passage.  The  notice  or  regulation  ex- 
cluded colored  persons  from  the  steamboat  cabin,  and  on  that  account 
alone,  the  plaintiff  was  excluded.  The  Court  said,  "  The  right  to  be  car- 
ried is  one  thing1:  the  privileges  of  a  passenger  on  board  of  the  boat,  what 
part  of  it  may  be  occupied  by  him,  or  he  have  the  right  to  use,  is  another 
thing.  The  two  rights  are  very  different.  .  .  .  (A.D.  1858). 

"  The  refusal  to  allow  plaintiff  the  privilege  of  the  cabin,  oh  his  tender- 
ing cabin  fare,  was  nothing  more  or  less  than  denying  him  certain  accom- 
modations, while  being  transported,  from  which  he  was  excluded  by  the 
rules  and  regulations  of  the  boat.  .  .  . 

"  But  the  reasonableness  of  a  rule  or  regulation  is  a  mixed  question  of 
law  and  fact,  to  be  found  by  the  jury  on  the  trial,  under  the  instructions  of 
[126J 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §   104 

porated  in  the  particular  contract.  But  most  of  the 
minor  regulations  now  to  be  treated  of  are  usually 

the  Court.  It  may  depend  on  a  great  variety  of  circumstances,  and  may 
not  improperly  be  said  to  be  in  itself  a  fact  to  be  deduced  from  other  facts. 
It  is  not  to  be  inferred  from  the  rule  or  regulation  itself,  but  must  be  shown 
positively." 

What  was  denominated  a  by-law  of  the  city  of  Boston,  prohibited  fast 
driving  on  the  streets,  and  affixed  a  penalty  in  pursuance  of  a  power  in 
the  charter.  Under  indictment  it  was  held  (Commonwealth  v.  Worcester, 
3  Pick.  4 6 2), that  "evidence  adduced  to  prove  the  by-law  unreasonable 
was  clearly  inadmissible.  It  was  for  the  Court  to  decide  whether  the 
by-law  was  reasonable  or  not."  This  is  the  general  doctrine  as  to  by- 
laws ;  but  this  decision  also  rests  upon  the  ground  that  the  rule  was  in- 
tended to  prevent  a  nuisance. 

The  State  v.  Overton,  4  New  Jersey  R.  435,  seems  to  favor  the  idea 
that  the  jury  alone  must  pass  on  the  reasonableness  of  such  regulations 
as  are  not  properly  called  by-laws.  The  passenger  bought  a  ticket  from 
Newark  to  Morristown  ;  got  off  the  train  before  reaching  Morristown, 
without  the  conductor's  knowledge  or  consent ;  got  on  another  train  an 
hour  afterwards ;  presented  the  first  conductor's  check  to  the  second  con- 
ductor, which  he  refused  to  recognize,  and  put  the  passenger  off  the  car. 
The  company  had  given  notice  that  conductors'  checks  were  not  transfer- 
able from  one  train  to  another.  The  company  was  ready  to  take  the  pas- 
senger through  to  Morristown.  The  Supreme  Court  said,  "  The  question 
is  obviously  a  question  of  contract  between  the  passenger  and  the  com- 
pany. .  .  .  The  check  was  therefore  valueless :  the  right,  of  which  it  was 
the  evidence,  the  passenger  had  voluntarily  relinquished." 

The  Court  below  submitted  the  reasonableness  and  validity  of  this  rule, 
as  to  the  non-transf'erability  of  the  conductor's  check,  to  the  jury.  The 
Supreme  Court  held  this  to  be  error,  and  said,  "  Here  was  no  evidence  of 
any  by-law,  or  of  any  regulation  made  by  the  company,  affecting  the 
rights  of  passengers,  upon  the  reasonableness  or  validity  of  which  either 
Court  or  jury  were  called  upon  to  decide.  The  right  of  the  passenger 
rested  upon  his  contract."  This  decides  the  case ;  but  the  Chief  Justice 
went  further,  and  answered  arguments  of  counsel.  He  remarked  upon 
the  difference  between  by-laws  and  a  regulation  made  for  the  comfort 
and  convenience  of  travellers,  or  to  protect  the  rights  of  the  company,  and 
said,  from  the  very  nature  of  the  latter,  it  is  a  question  of  fact,  and  "  the 
reasonableness  and  unreasonableness  of  the  regulation  is  properly  for  the 
consideration,  not  of  the  Court,  but  of  the  jury."  He  then  cites  Jenks 
».  Coleman,  2  Sumner,  221,  which  we  do  not  think  sustains  his  abstract 
proposition.  The  opinion  is  followed,  however,  in  Morris  &  Essex  11.  U. 

[127] 


§  104  RIGHTS    AND    DUTIES  [PART  II. 

adopted  by  the  superintendent  or  business  manager  of 
the  company,  and  can  hardly  be  regarded  as  by-laws 
of  the  corporation,  nor  do  they  belong  to  that  class 
described  as  offered  terms  of  a  contract.  Yet  they 
are  of  great  importance,  necessary  to  the  convenience 
of  all  concerned  in  the  practical  workings  of  the  tele- 
graph. It  has  been  held,  that  the  validity  of  such  rules 
depends  upon  their  reasonableness,  and  is  a  question 
of  fact  for  the  jury ; :  but  we  think  this  statement 
is  too  broad.  Where  the  rule  is  a  mere  restriction 
upon  the  enjoyment  of  an  admitted  right,  and  its  appli- 
cation gives  rise  to  litigation,  the  Court  will  declare  in 
what  cases  and  to  what  intent  the  company  may  estab- 
lish rules,  and  instruct  the  jury  to  ascertain  from  the 
proof  what  is  the  rule,  and  whether  it  is  reasonable 
within  the  definitions  given  by  the  Court,  and  whether 
its  enforcement  was  just  and  proper  in  the  given  case. 
Thus  the  reasonableness  of  the  rule  is  hypothetically 
declared  by  the  Court ;  and  its  actual  reasonableness 
or  unreasonableness  ascertained  and  declared  by  the 
jury,  in  the  light  of  the  instructions  given.  The  Court 
must  pass  upon  them  in  the  first  instance ;  for  if  they 


Co.  v.  Ayres,  5  Butcher's  R.  393,  which  involved  the  right  of  a  railroad 
company  to  demand  a  receipt  for  all  of  the  employer's  goods  in  the  ware- 
house before  any  should  be  removed. 

Whether  these  New  Jersey  cases  be  correct  as  applied  to  the  facts,  we 
shall  not  discuss,  but  express  the  belief  that  reason  and  the  weight  of 
the  authorities  sustain  our  proposition,  that  where  rules  and  regulations 
are  in  derogation  of  common  right,  or  are  intended  to  restrict  and  limit 
liabilities  to  which  the  company  would  otherwise  be  subject,  by  reason 
of  the  duties  imposed  upon  it  by  law,  or  the  nature  of  its  engagement,  the 
validity  of  all  such  rules  and  regulations  is  a  question  of  law. 

1  State  v.  Over-ton,  4  N.J.  (Zab.)  435  ;    Morris  &  Essex  R.R.  Co.  v. 
Ayres,  5  Dutcher,  393. 
[128] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  104 

contravene  constitutions,  laws,  good  morals,  or  public 
policy,  that  objection  would  be  as  fatal  to  them  as  to 
a  by-law. 

These  regulations  are  analogous  to  those  adopted 
by  railroad  companies  to  secure  the  safety  and  con- 
venience of  their  agents  and  of  passengers.  In  Ved- 
der  v.  Fellows,  the  right  of  a  conductor  to  take  up 
a  ticket  before  arriving  at  the  passenger's  destination 
was  decided  to  be  a  question  of  law.  Such  corpora- 
tions owe  a  paramount  duty  to  the  public,  which  they 
may  not  neglect  or  disregard.  Their  rules  and  regu- 
lations must  not  be  violative  of  statutory  or  common 
law.  In  every  case  submitted,  the  jury  must  decide 
whether  the  facts  justified  an  enforcement  of  the  rule  ; 
but  the  validity  of  the  rule  itself  must  be  first  passed 
upon  by  the  Court.  Were  it  otherwise,  uniformity 
would  never  be  attained.1  This  distinction  should  be 
carefully  observed  when  passing  upon  the  reasonable- 
ness of  rules  respecting  repeated  and  unrepeated  mes- 
sages. So  far  as  the  rules  operate  as  a  tariff  of  charges, 
they  become  an  element  in  the  contract,  if  there  be 
one,  or  their  reasonableness  is  considered  by  the  jury 
in  making  their  award  for  services  rendered,  in  the 
absence  of  a  contract.  But  when  such  rules  are  inter- 
posed as  a  defence  against  the  company's  own  negli- 
gence, fraud,  or  misfeasance,  or  as  a  specific  limitation 
upon  the  extent  of  its  responsibility,  either  as  to  delays 
or  mistakes,  their  validity  is  a  pure  question  of  law, 
in  deciding  which  the  courts  should  not  encumber 
themselves  with  the  infirmities  of  the  business,  or  the 
mysteriousness  of  agencies  employed,  any  further  than 

1  20  N.Y.  126. 

9  [129] 


§  106  RIGHTS    AND    DUTIES  [PART   II. 

may  be  necessary  in  making  an  intelligible  application 
of  the  law  in  a  given  case. 

§  105.  In  enumerating  rules  and  regulations  law- 
ful for  them  to  establish,  we  confine  ourselves  to  such 
as  have  more  particular  application  to  the  ordinary 
business  of  telegraph  companies. 

We  say,  then,  they  have  the  right  to  establish  rules 
and  regulations  which  would  protect  the  operator  and 
other  employes  from  interference  or  annoyance  while 
engaged  in  their  duties  in  the  office. 

§  106.  They  would  also  have  the  right  to  establish 
rules  in  the  office  to  insure  secrecy  in  reference  to  all 
private  despatches.  As  a  general  thing,  this  duty  of 
secrecy  is  enjoined  by  statute.  Independent  of  such 
express  requirement,  the  very  nature  of  their  employ- 
ment would  require  this.  Such  rules  would  therefore 
be  reasonable  and  proper  ;  and  this  may  be  stated  as 
being  clearly  one  of  the  rights  of  telegraph  compa- 
nies. 

In  enforcing  these  rules  they  would  be  justifiable 
in  ejecting  from  the  office  —  using  only  such  force  as 
should  be  necessary  for  that  purpose  —  any  person 
infringing  them,  either  by  reading  or  hearing,  or 
attempting  to  read  or  hear,  messages ;  by  disturbing 
or  distracting  the  attention  of  operators,  clerks,  or 
other  employes  of  the  company,  in  the  performance 
of  their  appropriate  duties,  or  by  meddling  with  the 
wires,  batteries,  instruments,  or  other  things,  whereby 
business  should  be  impeded.1 

1  Barker  v.  Midland  Railway,  36  Eng.  Law  &  Eq.  R.  253  ;  Common- 
wealth v.  Power,  7  Met.   596  ;    State  ».  Gould,  Am.  Law  Register,  Jan. 
1866,  p.  143;    State  v.  Overton,  4  N.J.  (Zab.)  435  ;    Hall  v.  Power,  12 
Met.  482;  1  Am.  Railway  Cases,  389;  Stephen  ».  Smith,  29  Vt.  R.  160. 
[130] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §   107 

But  if  a  person  should  be  removed  for  an  alleged 
violation  of  the  rules  of  the  company,  and  it  should 
appear  that  in  fact  he  did  not  violate  them,  the  oper- 
ators or  other  servants  removing  him  would  be  liable 
to  such  person  in  damages,  although  they  may  have 
acted  in  good  faith.1 

§  107.  They  have  the  right  to  require  that  all  mes- 
sages offered  for  transmission  over  their  lines  should 
be  plainly  written,  and  might  refuse  to  send  any  mes- 
sage delivered  to  them  orally,  or  in  an  illegible  hand- 
writing. 

This  is  so,  from  various  considerations ;  it  insures 
the  greater  despatch  of  business  in  the  office ;  there 
will  be  less  liability  to  mistakes ;  and  the  written 
message  may  become  important  in  any  litigation 
between  the  company  and  the  sender  of  the  message 
that  might  occur.  In  fact,  it  is  of  the  utmost  conse- 
quence that  the  message  should  be  plainly  legible. 
The  operator  is  not  required  to  know  the  meaning  of 
the  message,  and  will  not  be  safe  in  deciphering  words, 
or  attempting  to  discover  the  meaning  by  the  context. 
Witnesses,  jurors,  and  courts  may  differ  on  these 
points,  even  where  the  original  draft  of  the  message  is 
submitted  to  inspection  as  an-  instrument  of  evidence. 
It  is  not  a  question  for  experts.  As  the  employer  has 
a  right  to  have  the  message  telegraphed  as  written,  so 
the  company  may  refuse  to  attempt  it,  unless  relieved 
from  all  uncertainty  as  to  the  words  and  letters  of 
which  it  is  composed.  If  orally  delivered,  it  could 
only  be  proved,  like  other  matters  resting  in  parol,  by 
the  recollection  of  witnesses,  in  whose  hearing  it  might 

1  1  Am.  Railway  Cases,  410. 

[131] 


§   108  RIGHTS    AND    DUTIES  [PART    II. 

be  repeated,1  whose  corruption  or  failure  of  memory 
might  operate  to  the  prejudice  of  the  company.2 

§  108.  They  may  reasonably  require  that  numer- 
als should  not  be  used  in  stating  sums  or  amounts, 
in  messages,  but  that  the  same  should  be  written  out 
in  full.  This  regulation  is  highly  important  in  guard- 
ing against  mistakes;  for  the  company  is  justly  enti- 
tled to  the  clearest  and  most  certain  characters  in 
which  a  message  can  be  written.  The  letters  and 
syllables  usually  may  be  more  certainly  read  and  un- 
derstood than  figures.  Thus  unnecessary  loss  of  time 
is  avoided,  as  well  as  annoyance  and  liability  upon  the 
ground  of  alleged  mistake.  It  attains  another  element 
of  certainty  and  self-verification  in  the  future  uses  to 
which  the  message  may  be  subjected.  Whatever 
advantage  there  may  be  in  using  full  written  words, 
rather  than  figures,  will  inure  to  the  benefit  of  the 
sender  and  receiver  in  their  relations  to  each  other  in 
all  respects,  especially  in  case  the  telegraph  is  used 
as  a  medium  of  contract.3  In  addition  to  these  con- 
siderations, we  may  add  that  the  charge  for  transmit- 

1  Durkee  v.  Vt.  Cent.  R.R,  29  Vt.  R.  127. 

*  The  company  might  refuse  to  send  the  message  if  so  obscurely  writ- 
ten as  that  the  operator  had  doubts  as  to  its  exact  meaning.     N.Y.  & 
Wash.  Prin.Teleg.  Co.  ».  Dryburg,  35  Pa.  St.  R.  298. 

*  A  case  is  referred  to  in  7  Western  Law  Journal,  p.  449,  where  a  land 
speculator  sent  a  message  instructing  his  agent  to  give  a  certain  amount 
for  a  piece  of  land.     The  operator,  mistaking  the  figures,  increased  the 
sum  named,  so  that  the  agent  purchased  the  land  at  three  times  the  sum  he 
was  instructed  to  pay  for  it,  and  the  action  was  brought  to  hold  the  tele- 
graph company  liable.     We  can  find  no  other  report  of  this  case.     The 
editor  adds,  commenting  on  the  above  case,  "  For  the  information  of  those 
who  send  by  telegraph,  it  may  be  well  to  state  that,  as  figures  are  always 
reduced  to  words  by  the  operator,  and  charged  accordingly,  the  safer  plan 
is  to  use  words  instead  of  numericals." 

[132] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  110 

ting  is  usually  based  upon  the  number  of  words,  and 
the  company  has  a  right  to  have  them  written  out, 
that  the  message  itself  will  verify  the  justness  of  the 
claim.  They  have  the  right  to  fix  the  ratio  of  com- 
pensation for  the  transmission  of  messages,  and  these 
rates  must  be  reasonable  and  uniform,  and  without 
discriminations  as  to  individuals  or  classes. 

§  109.  So,  also,  they  could  require  that  all  messages 
should  be  prepaid. 

§  110.  They  may  classify  their  charges;  demand- 
ing certain  rates  for  a  direct  transmission  of  messages  ; 
another  rate  for  repeating  them  back  and  forth ;  and  a 
still  higher  rate  for  such  messages  as  are  known  or 
admitted  to  involve  an  amount  of  labor  or  risk  greater 
than  ordinary.  This  rule,  like  any  other  element  of  a 
contract,  must  be  fixed  beforehand,  must  be  reasonable, 
and  uniform  as  to  rates  and  mode  of  application.  It  is 
to  be  observed  that  the  risk  here  spoken  of  is  not  predi- 
cated upon  the  value  of  the  message,  as  mere  proper- 
ty under  an  ordinary  insurance.  The  rule  for  repeat- 
ing the  message  disposes  of  the  question  of  increased 
labor ;  and  by  this  increased  labor,  accuracy  is  to  be 
attained.  Accuracy  in  the  transmission,  and  prompt- 
ness in  delivery,  show  full  compliance  with  the  under- 
taking. Fidelity  will  secure  prompt  delivery,  and  to 
this  the  company  is  bound  in  all  messages:  so  we 
have  nothing  left  to  consider  in  the  way  of  risk, 
except  imperfection  of  instruments  and  agencies  hi 
the  matter  of  transmission,  causing  "  the  risk  of  the 
message  not  going  rightly,"  as  expressed  by  Willes, 
J.,  in  the  McAndrew  case.  The  damages  that  may 
ensue  in  some  cases  might  be  very  great ;  so  ruinous, 

[133] 


§   112  RIGHTS    AND    DUTIES  [PART  II. 

that  the  company  should  be  allowed  to  protect  itself 
by  special  contract. 

§  111.  As  errors  may  be  caused  by  imperfections 
of  instruments  and  appliances,  by  electrical  changes, 
and  negligence  of  operators,  it  frequently  becomes 
important  to  know  at  once  whether  the  message  has 
been  affected  by  any  of  these  incidents.  The  party 
sending  may  satisfy  himself,  to  a  great  extent,  by  hav- 
ing the  message  relaid  or  returned  from  its  ultimate 
destination,  and  then  comparing  it  with  his  own 
manuscript.  If  correct,  the  office  of  delivery  is  noti- 
fied of  the  fact.  This  is  a  repeated  message.  More 
time  and  labor  are  required,  but  no  more  skill.  We 
fail  to  perceive  that  there  is  any  greater  risk ;  for  if 
the  message  is  fully  verified  by  this  repetition,  the 
element  of  uncertainty  is  gone ;  there  is  nothing  to 
insure.1  If  there  be  causes  of  delay,  they  affect  either 
kind  of  message  alike.  The  company  is  bound  to 
remove  the  obstacle  promptly,  if  possible ;  and  if 
caused  by  the  act  of  God  or  the  public  enemy,  the 
consequent  delay  involves  no  risk.  So  that  it  is  man- 
ifest that  messages  are  repeated  for  the  purpose  of 
correcting  errors,  and  not  to  avoid  delay.  After  trans- 
mission, an  incorrect  message  could  be  sent  out  and 
delivered  as  speedily  as  if  it  had  been  verified  and 
proved  to  be  perfectly  accurate.  Whether  it  be  a 
repeated  or  unrepeated  message,  the  two  operators 
must  be  engaged  at  the  same  time  upon  the  same 
message ;  and  the  presence  of  disturbing  forces  is 
known  to  both  alike. 

§  112.  The  argument  of  counsel   in   the    case   of 

1  See  post,  c.  4,  for  the  reasoning. 
[134] 


CHAP.  II.]  OF   TELEGRAPH    COMPANIES.  §  113 

Birney  v.  N.Y.  &  Wash.  Prin.  Teleg.  Co.1  is  worthy 
of  attention.  There  it  is  said,  "  We  state  a  fact  of 
science,  which  we  may  use  in  this  argument  without 
it  appearing  of  record,  when  we  say  the  operating 
apparatus  of  the  telegraph  leaves  no  record  of  the 
work  done.,  at  the  place  from  which  it  is  transmitted, 
and  that  therefore  there  is  a  peculiar  liability  to  error, 
in  the  non-transmission  and  transmission  of  despatches. 
So  plain  is  the  risk  created  by  this  circumstance,  that 
we  may  assume  it  is  impossible  to  know  with  cer- 
tainty that  a  message  has  been  transmitted  at  all,  or 
transmitted  in  the  very  words  of  the  despatch,  unless 
the  operator  at  the  other  terminus  of  the  stipulated 
route  informs  the  operator  transmitting  the  despatch, 
of  the  fact  of  its  reception,  and  of  the  very  form  in 
which  it  has  been  received.  .  .  .  And  it  seems  that 
such  a  repetition  is  necessary  to  the  safe  transmission 
of  any  despatch."  If  this  be  the  correct  view,  the 
risk  grows  out  of  imperfections  in  the  agencies  used ; 
and  repetition  is  necessary  in  order  that  the  company 
may  know  assuredly  that  its  duty  has  been  performed. 
To  secure  this  result  the  right  to  make  needful  rules 
and  regulations  is  undeniable ;  and  as  guides  for  the 
agents  of  the  company,  they  are  lawful  and  binding. 
As  applicable  to  employers,  they  afford  a  rule  and 
measure  of  compensation  to  be  paid.2 

§  113.  By  the  Electric  Telegraph  Company's  Act, 
16  &  17  Viet.  c.  203,  §  66,  it  is  provided  that  the  pub- 
lic, without  preference,  shall  have  the  use  of  the  com- 
pany's telegraph, "  subject  to  reasonable  regulations,  to 
be  made  by  the  company."  Substantially  the  same 

1  18  Md.  341.  2  Vide  post,  c.  4,  §  212. 

[135] 


§113  RIGHTS    AND    DUTIES  [PART    II. 

provision  is  to  be  found  in  the  statutes  of  many  of  the 
American  States,1  and  it  has  been  held,  that  it  is  com- 
petent under  the  statutes  for  a  company  to  protect  itself 
against  all  responsibility  arising  from  mistakes  or 
delays  in  unrepeated  messages,  however  produced.2 
We  think  this  goes  too  far,  because  it  operates  as  a 
stipulation  against  negligence  both  in  sending  and  de- 
livering messages,  and  it  cannot  bind  employers  of  the 
company  in  any  event,  unless  embraced  in  a  special 
contract.  Delays  in  delivery  of  a  message  result  from 
causes  altogether  different  from  those  which  produce 
mistakes  in  transmission ;  and  it  is  reasonable  that  rules 
of  limitation  or  exemption  should  be  adapted  to  the 
nature  of  the  case.  It  is  obvious  that  the  Court  in 
the  McAndrew  case  was  greatly  influenced  by  what 
is  declared  to  be  "  an  infirmity  in  the  business," 
which  makes  it  important  that  messages  be  re- 
peated. The  weight  of  that  argument  has  been 
greatly  diminished  by  improvements  in  the  art  since 
the  year  1855.  But  we  feel  confident  that  the  com- 
pany is  not  entitled  to  protection  against  defects  in 
its  appliances.  Common  carriers  are  compelled  to 
furnish  suitable  and  safe  modes  of  transportation,  ac- 
cording to  the  improved  state  of  the  art ; 3  and  tele- 
graph companies  are  bound  by  a  rule  equally  as  rigid.4 
In  point  of  fact  they  assert  their  ability  to  send  mes- 
sages with  absolute  certainty  if  not  prevented  by  dis- 

1  Ante,  §  104,  note  1. 

1  See  the  various  printed  regulations  which  have  been  declared  in 
general  terms  to  be  in  all  things  reasonable,  especially  Camp's  case,  1 
Met  (Ky.),  164. 

3  Nash.  &  Chat.  R.R.  Co.  v.  Messino,  1  Sneed  (Tenn.),  220. 

4  Western  Union  Teleg.  Co.  v.  Carew,  15  Michigan  R.  525. 

[136] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  114 

turbing  forces.  But  these  forces  do  not  affect  the 
ability  of  the  company  to  deliver  the  message  to  the 
party  addressed,  after  it  has  been  taken  off  the  wires 
and  reduced  to  writing.  In  the  case  of  McAndrew, 
the  Court  saw  the  unreasonableness  of  that  part  of  the 
rule  claiming  exemption  from  diligence  in  the  delivery 
of  messages.1  They  are  careful  in  saying,  "  We  are 
not  called  upon  to  say  whether  the  whole  and  every 
portion  of  the  conditions  at  the  back  of  the  contract 
is  or  is  not  reasonable."  The  precise  point  in  the 
plea  was  that  by  mistake  of  defendants'  operator, 
"  Southampton  "  was  changed  into  "  Hull "  in  an  un- 
repeated  message ;  "  a  mistake  within  the  meaning"  of 
the  condition  against  any  liability  "  for  mistakes  in 
the  transmission  of  unrepeated  messages,  from  what- 
ever causes  they  may  arise."  The  Court  declared 
broadly  that  the  company  was  not  responsible  for  the 
mistake  in  this  message,  sent  under  the  special  con- 
tract. 

§  114.  These  observations  are  rendered  necessary 
by  the  fact  that  this  case  has  been  regarded  by  several 

1  The  case  of  Ellis  v.  Am.  Teleg.  Co.  13  Allen,  266,  was  upon  error  in 
transmitting  the  despatch.  The  Court  entered  a  similar  disclaimer  as  to 
other  terms  in  the  notice ;  but  the  disclaimer  itself  is  not  perfectly  ac- 
curate, as  we  suppose.  They  say,  "  The  sole  question  here  is,  whether 
that  portion  of  the  terms  and  conditions  prescribed  by  the  defendants  is 
reasonable  and  valid,  which  provides  that  the  defendants  will  not  hold 
themselves  responsible  for  errors  and  delays  in  the  transmission  and  de- 
livery of  messages,  unless  they  be  repeated ;  that  is,  sent  back  from  the 
station,"  etc.  The  reasoning  and  the  spirit  of  the  opinion  exclude  the  idea 
that  the  Court  would  allow  the  notice  to  exempt  the  company  from 
damages  for  unnecessary  delays,  either  in  transmitting  or  delivering  mes- 
sages ;  for,  at  the  last,  it  is  added,  "  Of  course,  the  defendants  would  be 
liable  for  any  negligence  causing  damage,  which  would  not  have  been 
prevented  by  a  compliance  with  these  rules." 

[137] 


§115  RIGHTS    AND    DUTIES  [PART  II. 

courts,1  as  a  leading  authority  for  holding  that  regu- 
lations are  reasonable,  which  provide  that  the  com- 
pany will  not  be  liable  for  mistakes  or  delays  either 
in  sending  or  delivering  messages,  etc.  The  Court  do 
not  so  hold;  but,  on  the  contrary,  say  that  the  com- 
pany may  not  stipulate  against  its  own  negligence. 
Take  this  general  principle,  in  connection  with  the 
statement  above,  that  they  were  not  passing  upon  all 
the  conditions  in  the  printed  regulation,  and  the  ruling 
of  the  Court  is  only  this :  Under  the  Electric  Telegraph 
Company's  Act  of  1853,  c.  203,  §  66,  this  company 
had  the  power  to  adopt  regulations  for  the  use  of 
their  wires  ;  that  the  amount  charged  by  the  company, 
by  way  of  difference  between  the  unrepeated  and  the 
repeated  message,  or  the  uninsured  and  the  insured 
message,  was  no  greater  than  fairly  represented  "  the 
difference  of  labor  or  the  amount  of  risk"  (see  Willes' 
opinion) ;  and  that  therefore  the  rule  was  reasonable 
in  respect  of  this  mistake. 

In  the  telegraphic  alphabet  used  at  that  time,  the 
character  signifying  Southampton  also  signified  Hull, 
and  this  seems  to  be  the  "  infirmity  in  the  business." 
If  it  had  not  been  for  the  importance  given  to  this 
circumstance,  it  seems  almost  certain  that  the  Court 
would  have  held,  that  the  sole  question  was,  How  far 
may  such  a  company  protect  itself  against  negligence 
by  express  contract? 

§  115.  The  next  case  in  which  this  question  was 
considered,  arose  in  the  State  of  Kentucky,  in  1858,  — 

1  Teleg.  Co.  ».  Carew,  15  Mich.  R.  525  ;  Birney  v.  Wash.  Print.  Telcg. 
Co.  18  Md.  R.  341  ;  Breese  &  Mumford  v.  U.S.  Teleg.  Co.  45  Barb.  274  ; 
Ellis  v.  Am.  Teleg.  Co.  13  Allen  (Mass.),  226. 
[138] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §   H5 

Camp  v.  The  Western  Union  Telegraph  Co.1     The 

1  1  Metcalfe,  R.  164.  Simpson,  J.,  delivered  the  opinion  of  the  Court. 
"This  action  was  brought  against  the  Western  Union  Telegraph  Co.,  for  fail- 
ing to  transmit  correctly  a  communication  from  the  appellant,  at  Louisville, 
to  David  Gibson  &  Co.,  at  Cincinnati.  The  plaintiff  alleged  in  his  peti- 
tion that  the  defendant  undertook,  for  compensation  then  paid,  to  transmit 
from  Louisville,  Kentucky,  to  David  Gibson  &  Co.,  of  Cincinnati,  Ohio,  a 
proposition  to  purchase  two  hundred  barrels  of  whiskey  at  fifteen  cents  per 
gallon ;  and  that,  instead  of  transmitting  the  proposition  correctly,  the 
communication  as  made  represented  him  as  offering  sixteen  cents  per  gal- 
lon for  the  whiskey.  He  also  alleged  that  Gibson  &  Co.  advised  him  that 
they  accepted  his  proposition,  and  immediately  forwarded  to  him  two  hun- 
dred barrels  of  whiskey,  under  the  belief  that  he  had  offered  them  sixteen 
cents  per  gallon  for  it,  which  was  received  by  him  under  the  belief  that  it 
had  been  sold  to  him  at  fifteen  cents  per  gallon.  He  further  alleged,  that, 
in  consequence  of  the  failure  of  the  defendant  to  transmit  the  message  in- 
trusted to  it,  and  the  transmission  by  it  of  a  message  of  a  different  import, 
he  was  compelled  to  pay  sixteen  cents  per  gallon  for  the  whiskey,  and  had 
thereby  sustained  a  loss  to  the  amount  of  one  hundred  dollars. 

"  The  telegraph  company,  by  way  of  defence,  relied  upon  a  notice  of 
the  terms  and  conditions  on  which  messages  were  received  by  it  for  trans- 
mission, which,  so  far  as  they  are  applicable  to  the  present  case,  are  as 
follows :  — 

" '  The  public  are  notified,  that,  in  order  to  guard  against  mistakes  in 
the  transmission  of  messages,  every  message  of  importance  ought  to  be  re- 
peated, by  being  sent  back  from  the  station  at  which  it  is  to  be  received, 
to  the  station  from  which  it  is  originally  sent.  Half  the  usual  price  for 
transmission  will  be  charged  for  repeating  the  message.  This  company 
will  not  be  responsible  for  mistakes  or  delays  in  the  transmission  or  deliv- 
ery of  unrepeated  messages,  from  whatever  cause  they  may  arise.' 

"  It  was  alleged  in  the  answer  that  the  plaintiff  had  notice  of  the  afore- 
said terms  and  conditions,  and  sent  the  message  subject  to  them,  but  did 
not  require  the  message  to  be  repeated,  nor  pay,  nor  agree  to  pay,  for  its 
repetition. 

"  There  is  no  allegation  in  plaintiff's  petition  that  the  mistake  was  occa- 
sioned by  negligence,  or  was  the  result  of  incompetency  or  want  of  proper 
skill  on  the  part  of  the  agents  who  were  employed  by  the  company  to  act 
as  operators  in  the  sending  and  receiving  of  despatches ;  but  the  failure  of 
the  company  to  comply  with  its  contract  to  transmit  the  message  correctly, 
is  alone  relied  upon  as  the  foundation  of  the  plaintiff's  right  to  a  recovery 
in  the  action. 

"  The  proof  shows  that  it  is  impracticable  to  transmit  telegraphic  com- 
munications with  absolute  accuracy  at  all  times,  and  that  such  communi- 

[139] 


§115  RIGHTS    AND    DUTIES  [PART   II. 

notice  was  the  same  as  in  the  case  of  McAndrew. 
The  message  was  sent  as  an  unrepeated  message. 

cations,  from  the  very  nature  of  the  medium  through  which  they  are 
made,  are  subject  not  only  to  occasional  interruptions  and  delays,  but  also 
to  inaccuracies  in  words  and  expressions.  It  may  be,  therefore,  reasona- 
bly presumed,  that  the  failure  to  deliver  this  message  correctly  was  the  re- 
sult of  a  mistake  to  which  such  communications  are  liable,  and  which  will 
sometimes  occur,  even  where  the  utmost  skill  and  care  are  exercised. 

"  The  question,  then,  is,  was  the  company  bound  at  all  events  to  transmit 
the  despatch  accurately,  or  had  it  the  legal  right  to  modify  its  liability  by 
giving  a  public  notice,  and  bringing  it  home  to  the  plaintiff,  of  the  terms 
and  conditions  on  which  alone  it  would  be  bound  for  mistakes  in  the  trans- 
mission of  messages? 

"  It  is  contended  that  the  responsibility  of  the  company  is  fixed  and  de- 
fined by  law,  and  cannot  be  changed  or  modified  by  any  terms  or  condi- 
tions that  the  company  may  think  proper  to  prescribe. 

"  It  can  hardly  be  doubted  that  the  company  and  the  person  sending  a 
message  might,  by  express  contract,  regulate  the  extent  of  the  liability  of 
the  former  for  any  mistake  that  might  occur.  Here,  however,  there  was 
no  express  contract  between  the  parties,  but  the  company  gave  notice  of 
the  terms  and  conditions  upon  which  it  was  willing  to  be  responsible,  and 
the  plaintiff  acted  under  that  notice  in  sending  the  message. 

"  We  do  not  deem  it  necessary  to  decide,  in  this  case,  to  what  extent  a 
telegraph  company  has  a  right  to  limit  its  liability  by  a  notice  to  those  for 
whom  it  undertakes  to  transmit  messages.  All  that  we  are  now  required 
to  decide  is,  whether  the  condition  which  the  company  relied  on  in  this 
case  is  reasonable,  and  such  a  one  as  it  had  a  right  to  prescribe. 

"  The  public  are  admonished  by  the  notice,  that,  in  order  to  guard 
against  mistakes  in  the  transmission  of  messages,  every  message  of  impor- 
tance ought  to  be  repeated.  A  person  desiring  to  send  a  message  is  thus 
apprised  that  there  may  be  a  mistake  in  its  transmission,  to  guard  against 
which  it  is  necessary  that  it  should  be  repeated.  He  is  also  notified  that 
if  a  mistake  occur,  the  company  will  not  be  responsible  for  it  unless  the 
message  be  repeated.  There  is  nothing  unreasonable  in  this  condition. 
It  gives  the  party  sending  the  message  the  option  to  send  it  in  such  a 
manner  as  to  hold  the  company  responsible,  or  to  send  it  for  a  less  price 
at  his  own  risk.  If  the  message  be  unimportant,  he  may  be  willing  to  risk 
it  without  paying  the  additional  charge.  But  if  it  be  important,  and  he 
wishes  to  have  it  sent  correctly,  he  ought  to  be  willing  to  pay  the  cost  of 
repeating  the  message.  This  regulation,  considering  the  accidents  to 
which  the  business  is  liable,  is  obviously  just  and  reasonable.  It  does  not 
exempt  the  company  from  responsibility,  but  only  fixes  the  price  of  that 
[140] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  116 

The  plaintiff  sent  the  message  with  knowledge  of  the 
regulation.  The  Court  held  that  it  was  a  reasonable 
regulation,  and  adopt  much  the  same  course  of  rea- 
soning as  the  English  judges. 

§  116.  The  case  of  De  Rutte  v.  The  New  York, 
Albany,  &  Buffalo  Telegraph  Co.1  recognizes  the  same 
doctrine,  and  for  the  same  reason. 

It  is  not  admitted  that  the  company  can  absolve 
itself  from  responsibility;  but  the  liability  to  mistakes 
and  delays  is  so  great  that  it  has  the  right  to  make  an 
additional  charge,  over  its  regular  charges,  as  a  com- 
pensation for  the  risk  it  incurs.  The  sender  of  the 
message  has  the  option  either  to  send  the  message  at 
his  own  risk  for  the  regular  charge,  or  to  fix  the 
responsibility  of  the  company  by  paying  a  reasonable 
additional  amount,  which  it  is  considered  is  but  an 
equivalent  for  the  service  thereby  rendered  by  the 
company.  This  amount  is  usually  half  the  original 
charge  in  addition.  Even  then  the  compensation  is 
small  in  proportion  to  the  risk  assumed.  But  if,  in 
the  transmission  of  unrepeated  messages  under  such 
regulations,  the  company  are  guilty  of  negligence,  they 

responsibility,  and  allows  the  person  who  sends  the  message,  either  to 
transmit  it  at  his  own  risk,  at  the  usual  price,  or  by  paying,  in  addition 
thereto,  half  the  usual  price,  to  have  it  repeated,  and  thus  render  the  com- 
pany liable  for  any  mistake  that  may  occur. 

"  The  plaintiff  must,  therefore,  be  regarded  as  having  sent  the  message 
in  this  case  at  his  own  risk,  inasmuch  as  he  failed  to  have  it  repeated,  and 
consequently  the  company  was  not  liable  for  the  mistake.  It  is  unneces- 
sary, therefore,  to  decide  whether  the  plaintiff  was  legally  responsible  for 
the  sixteen  cents  per  gallon  for  the  whiskey,  or  only  for  the  price  which 
he  actually  offered. 

"  Wherefore  the  judgment  of  the  Chancellor,  dismissing  the  plaintiff's 
petition,  is  affirmed." 

1  Court  of  Common  Pleas,  N.Y.,  1  Daly,  547. 

[141] 


§   117  RIGHTS    AND    DUTIES  [PART   II. 

would  be  liable ;  they  have  no  right  to  provide  against 
their  own  negligence.1 

§  117.  So  in  the  case  of  Bimey  v.  New  York  & 
Washington  Telegraph  Co.,2  the  Maryland  Code  pro- 
vided that  "  any  person  or  association  owning  any 
telegraph  line  doing  business  within  this  State,  shall 
receive  despatches  from  and  for  other  telegraph  lines 
and  associations,  and  from  and  for  any  individual  for 
transmitting  despatches  as  established  by  the  rules  and 
regulations  of  such  telegraph  line,  and  shall  transmit 
the  same  with  impartiality  and  good  faith,"  etc. 

The  company  had  established  this  same  regulation 
as  to  repeated  messages.  The  message  delivered  by 
the  plaintiff  for  transmission  was  not  paid  for  as  a 
repeated  message,  and  consequently  must  have  been 
considered  as  delivered  for  transmission  as  an  unre- 
peated  message.  The  company  claimed  complete 
immunity  by  force  of  the  rule,  and  relied  upon 
McAndrew's  and  Camp's  cases. 

But  it  appeared  that  the  message  delivered  to  the 
operator  for  transmission  was  never  sent,  but  was 
entirely  overlooked  and  forgotten. 

The  company  was  held  liable  notwithstanding  this 
provision  of  the  Code,  and  the  regulations  adopted 
under  it,  by  the  company.  It  was  held  that  the  notice 
did  not  apply  to  cases  Avhere  no  effort  was  made  to 
put  the  message  on  its  transit.3 

1  See  cases  cited  in  the  text.  See  also  the  late  case  of  Ellis  v.  The 
Am.  Tuleg.  Co.  13  Allen,  R.  226.  *  18  Md.  R.  341. 

1  Goldsborough,  J.,  in  delivering  the  opinion  of  the  Court,  said,  "  Con- 
ceding that  the  notice  read  in  evidence  contained  the  terms  on  which  the 
appellee  would  receive  and  transmit  messages,  and  its  exemption  from 
liability,  as  stated  in  the  prayer,  and,  also,  that  this  notice  was  displayed  in 
[142] 


CHAP.   II.]  OF    TELEGRAPH    COMPANIES.  §   118 

§  118.  A  decision  was  recently  made  by  the  Court  of 
Appeals  of  Maryland  (not  yet  reported),  Gildersleeve, 
appellee,  v.  The  United  States  Tel.  Co.,  appellant 
(MS.),  in  which  the  power  of  the  company  to  restrict 
its  liability  by  printed  notices  is  stated  in  stronger 
terms  than  we  have  elsewhere  observed.  The  facts 
were  as  follows :  — 

"  This  was  an  action,  ex  contractu,  instituted  by  the 
appellee  against  the  appellant  to  recover  of  the  latter 
damages  resulting  from  its  failure  to  transmit  and  de- 
liver a  telegraphic  despatch  to  certain  stock-brokers 
in  New  York.  The  despatch  directed  to  be  trans- 
mitted was  as  follows :  '  No.  15,  Brokers'  Telegram 
Line,  4.  People's  Telegram  Lines,  No.  23  South 
Street,  and  Barnum's  City  Hotel,  Baltimore.  §end 
the  following  message,  without  repeating  it,  subject 
to  the  conditions  indorsed  on  the  back.  Dated  Balti- 
more, March  9,  1865.  To  Dibble  &  Cambloss,  N.Y. 

the  office  of  the  company,  so  that  the  appellant  saw  or  might  have  seen 
it,  still  it  is  manifest  that  the  terms  of  the  notice  neither  embrace  nor  de- 
clare an  exemption  from  liability  in  a  case  where  no  effort  is  made  by  the 
company  or  its  agents  to  put  a  message  on  its  transit.  The  exemption 
from  liability  for  the  non-transmission  and  non-delivery  of  unrepeated 
messages  provided  for  by  the  rules,  contained  in  its  notice,  does  not,  in 
our  opinion,  in  any  way  embrace  or  affect  this  case. 

"  The  terms  of  the  notice  in  which  exemption  from  liability  is  declared, 
clearly  imply  an  obligation  on  the  part  of  the  company  to  attempt  the 
transmission  and  delivery  of  a  message  received  by  it  for  that  purpose, 
and  it  would  be  most  unreasonable  to  permit  it  to  have  the  benefit  of  an 
exemption  from  liability  without  first  bringing  itself  within  the  scope  of  the 
exemption  provided  for,  by  a  full  and  faithful  performance  of  its  implied 
duties. 

"  While  we  give  full  force  and  effect  to  the  rules  and  regulations  of  the 
appellee,  in  a  legal  construction  of  them,  we  deem  it  unjust  to  the  appel- 
lant, to  extend  that  effect  beyond  the  actual  terms  adopted  by  the  appellee 
to  secure  its  exemption." 

[143] 


§   118  RIGHTS    AND    DUTIES  [PART  II. 

Sell  fifty  (50)  gold.  Words  3  ;  col.  70.  Geo.  Gilder- 
sleeve.'  It  is  alleged  that  this  despatch  was  an  order 
to  the  brokers  in  New  York  to  sell  for  the  appellee 
fifty  thousand  dollars  of  gold,  which  order  the  brokers 
would  have  obeyed ;  but  the  appellant  neglected  to 
telegraph  such  despatch,  whereby  the  appellee  was 
greatly  damaged  by  reason  of  the  decline  in  the 
market  price  of  gold.  The  appellant  pleaded,  not 
indebted  as  alleged,  with  an  agreement  that  such 
plea  should  be  received,  and  that  all  errors  in  plead- 
ing should  be  mutually  waived,  and  that  either  party 
might  rely  on  any  claim  or  defence  to  which  he  or  it 
would  be  entitled  if  specially  declared  on  or  pleaded. 
At  the  trial  below,  the  appellee  offered  one  prayer 
to  the  Court,  which  was  granted,  and  the  appellant 
offered  six  prayers,  of  which  the  first  five  were  re- 
jected and  the  sixth  was  granted.  And  it  was  to  the 
granting  of  the  appellee's  prayer  and  the  refusal  of 
those  on  the  part  of  the  appellant,  that  the  first  ex- 
ception was  taken.  On  this  exception  four  questions 
arise  :  1.  Whether  the  appellee  can  maintain  this 
action,  and  recover  more  than  nominal  damages  for 
the  default  of  the  appellant.  2.  Whether  the  con- 
tract for  transmission  of  the  message  was  subject  to 
the  terms  and  conditions  printed  on  the  back  of  the 
despatch,  or  to  other  similar  terms  and  conditions 
prescribed  by  the  rules  and  regulations  of  the  appel- 
lant's office.  3.  To  what  extent,  if  the  contract  be 
subject  to  such  terms  and  conditions,  can  the  appel- 
lant claim  to  be  exonerated  from  liability  thereunder. 
4.  To  what  measure  of  damage  is  the  appellant  sub- 
ject, if  the  contract  be  broken.  First.  It  appears  that 

[144] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  118 

the  appellant  was  a  broker  in  Baltimore,  and  that  Dib- 
ble &  Cambloss  were  his  correspondents  and  agents 
in  New  York,  through  whom  he  was  in  the  habit 
of  buying  and  selling  stocks  and  gold  in  the  latter 
city.  That  A.  B.  Patterson,  also  a  broker  in  Balti- 
more, was  appellee's  customer,  for  whom  the  appellee 
was  in  the  habit,  as  broker,  of  buying  and  selling 
gold  and  stock  in  New  York  through  the  agency  of 
Dibble  &  Cambloss.  That  by  arrangement  previously 
made  between  appellee  and  Patterson,  for  the  purpose 
of  saving  trouble  to  them  both,  instead  of  Patterson's 
being  required  to  give  orders  to  the  appellee  for  such 
purchases  and  sales,  and  the  appellee's  being  required 
to  send  them  to  his  correspondents,  Patterson  was 
authorized  to  send  orders  in  the  appellee's  name,  and 
on  his  responsibility  and  account,  to  Dibble  &  Cam- 
bloss, for  the  purchase  or  sale  of  stock  or  gold,  and 
that  by  this  arrangement  the  appellee  was  entitled  to 
his  commissions  on  purchases  and  sales  made  in  com- 
pliance with  such  orders,  and  the  right  and  liabilities 
of  the  appellee  and  Patterson  respectively  in  reference 
to  the  orders  so  sent,  were  in  all  respects  the  same  as 
if  Patterson  had  given  the  orders  to  the  appellee,  and 
the  latter  had  transmitted,  or  undertaken  to  transmit 
them  to  Dibble  &  Cambloss  in  his  own  name ;  Patter- 
son not  being  known  to  and  having  no  connection 
with  Dibble  &  Cambloss  except  through  the  appellee. 
That  under  said  arrangement,  on  the  9th  of  March, 
1865,  at  about  3:40  P.M.,  the  message  in  question,  ad- 
dressed to  Dibble  &  Cambloss,  was  left  by  Patterson's 
direction  at  appellant's  office  in  Baltimore,  and  that 
the  appellant,  by  its  agents,  undertook  to  send  and 

10  [145] 


§  118  a  RIGHTS    AND    DUTIES  [PART  II. 

deliver  it  to  the  parties  to  whom  it  was  ad'dressed. 
That  the  message  was  sent  to  the  office  without  the 
knowledge  or  special  direction  of  the  appellee,  but 
that  he  was  soon  after  informed  of  it  and  fully  sanc- 
tioned it ;  the  appellee  also  testified  that  he  was  not 
interested  in  this  transaction,  and  had  not  paid  any 
loss  to  Patterson,  and  did  not  consider  himself  liable 
to  Patterson  unless  he  recovered  in  this  suit,  in  which 
event  any  thing  that  was  recovered  was  to  be  paid 
over  to  Patterson.  It  was  also  proved  that  appellee 
had,  on  the  day  of  the  date  of  the  message,  two  hun- 
dred thousand  dollars  of  gold  to  his  credit  with  Dib- 
ble &  Cambloss,  and  of  that  sum,  as  between  appellee 
and  Patterson,  ninety-five  thousand  dollars  belonged 
to  the  latter." 

§  118  a.  As  to  the  power  of  the  company  to  impose 
terms  by  a  printed  notice,  so  as  to  incorporate  them 
in  the  contract,  the  Court  said,  — 

"  The  appellant  had  a  clear  right  to  protect  itself 
against  extraordinary  risk  and  liability  by  such  rules 
and  regulations  as  might  be  required  for  the  pur- 
pose. It  would  be  manifestly  unreasonable  to  hold 
these  telegraph  companies  liable  for  every  mistake, 
miscarriage,  or  accidental  delay  that  may  occur  in 
the  operation  of  their  lines.  From  the  very  nature 
of  the  service,  while  due  diligence  and  good  faith 
may  be  required  at  the  hands  of  the  company  and  its 
agents,  accidents,  delays,  and  miscarriages  may  occur 
that  the  greatest  amount  of  caution  cannot  avoid. 
Hence,  in  England,  and  in  many  of  the  American 
States,  provision  has  been  made  by  statute,  authoriz- 
ing these  companies  to  prescribe  rules  and  regulations 

[146] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  118  a 

whereby  they  may  be  protected  against  extraordinary 
liability.  In  this  State,  by  article  26,  section  117,  of 
the  Code,  while  impartiality  and  good  faith  are  to  be 
observed,  the  despatches  are  to  be  received  and  trans- 
mitted under  such  rules  and  regulations  as  may  be 
established  by  the  companies.  And  the  appellant, 
availing  itself  of  this  power,  appears  to  have  adopted 
rules  and  regulations  for  its  protection.  This  appears 
from  the  evidence  offered  by  both  appellee  and  ap- 
pellant. And  the  appellant  having  adopted  rules  and 
regulations  as  authorized  by  law,  according  to  the 
decision  of  this  Court  in  the  case  of  Birney  v.  The 
New  York  &  Washington  Telegraph  Company,  18 
Md.  341,  the  appellee  was  bound  to  know  that  the 
engagements  of  the  company  were  controlled  by  them, 
and  did  himself  in  law  engraft  them  in  his  contract,  and 
is  bound  by  them.  This  would  be  the  case  whether 
the  despatch  offered  for  transmission  be  expressly 
declared  to  be  subject  to  the  terms  and  conditions 
prescribed  or  not.  Those  dealing  with  the  company 
must  be  supposed  to  know  its  rules  and  regulations, 
and  their,  contracts  must  be  taken  to  have  reference  to 
them,  unless  otherwise  provided  by  special  contract. 
In  this  case,  however,  the  appellee  proffered  with  the 
despatch  his  own  terms.  The  despatch  was  written 
on  the  blank  of  another  company,  which  happened  to 
be  in  the  possession  of  Patterson,  but  the  terms  and 
conditions  printed  on  the  back  of  it,  and  to  which 
the  despatch  was  expressly  made  subject,  so  far  as  the 
question  in  this  case  is  concerned,  were  substantially 
the  same,  though  differing  in  words,  as  those  of  the 
appellant.  And  even  in  the  absence  of  rules  and 

[147] 


§   118  &  RIGHTS    AND    DUTIES  [PART  II. 

regulations  of  the  appellant's  office,  it  was  certainly 
competent  for  it  to  accept  the  terms  and  conditions 
proffered  with  the  message.  As,  however,  the  terms 
and  conditions  of  the  appellant,  and  those  printed  on 
the  back  of  the  despatch  of  the  appellee,  were,  so  far 
as  the  present  question  is  concerned,  substantially  the 
same,  it  is  immaterial  in  what  manner  the  contract 
became  subject  to  such  terms  and  conditions.  It  is 
enough  that  they  were  incorporated  in  it,  and  are  to 
be  taken  as  forming  part  of  it." 

§  118  6.  We  submit  that  individuals  dealing  with  a 
private  corporation  are  not  bound  to  know  its  rules  and 
regulations ;  nor  can  it  be  the  law  that  all  contracts  with 
it  are  to  be  construed  as  incorporating  these  rules, 
"  unless  otherwise  provided  by  special  contract."  If 
this  were  so,  there  would  be  no  mode  of  resisting  an 
unreasonable  or  illegal  rule,  where  a  despatch  had 
been  actually  sent;  for,  if  by  sending  the  despatch, 
the  employer  thereby  engrafts  these  rules  into  his 
contract,  "  and  is  bound  by  them,"  it  will  become 
wholly  immaterial  with  the  Court  whether  they  are 
reasonable  or  unreasonable.  This  is  not  in  accord- 
ance with  the  case  of  Me  Andrew,  which  merely  as- 
serts the  right  of  the  company  to  make  reasonable 
rules  and  regulations,  leaving  the  question  of  their 
being  so  always  open  for  the  decision  of  the  Court. 
In  the  case  of  Breese  &  Mumford  v.  The  United  States 
Telegraph  Company,1  the  Court  said,  '•  Before  the 
message  was  written  under  it  [the  printed  notice],  and 
signed  and  delivered  to  the  defendant,  it  was  a  general 
proposition  to  all  persons  desiring  to  send  messages 

1  45  Barb..274. 
[148] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  119 

by  the  defendant's  peculiar  means  of  transmission  or 
conveyance,  of  the  terms  and  conditions  upon  which 
such  messages  would  be  sent,  and  the  defendant  be- 
came liable  in  case  of  error  or  accident  in  the  trans- 
mission or  conveyance.  By  writing  the  message  under 
it,  and  signing  and  delivering  the  same  for  transmis- 
sion, the  party  accepted  the  proposition,  and  it  became 
an  agreement,  binding  upon  the  defendant  only  ac- 
cording to  the  terms  and  conditions  specified  in  its 
proposition."  Here  the  message  was  written  upon 
the  printed  blank,  and  under  an  agreement  that  it 
should  be  sent  according  to  its  terms.  The  Court 
say  this  is  sufficient  evidence  upon  which  to  bind  the 
parties  interested  to  a  knowledge  of  the  proposed 
limitations.  Of  course  this  would  be  a  question  for 
the  jury.  It  was  not,  however,  so  definitely  declared 
by  the  Court,  because  it  was  an  agreed  case,  in  which 
the  Court  was  passing  upon  the  facts.  This  decision 
plainly  implies  that  the  question  would,  in  an  ordi- 
nary trial,  be  left  to  the  jury  upon  facts  proved,  and 
does  not  hold  that  knowledge  of  these  private  rules 
is  a  presumption  of  law,  binding  in  all  cases,  "  unless 
otherwise  provided  by  special  contract." 

§  119.  Second.  A  telegraph  company  would  have 
the  right  to  decline  the  transmission  of  all  messages 
of  an  illegal  or  immoral  character,  or  such  as  were  in 
furtherance  of  fraud,  or  against  public  policy;  or 
where  the  message  was  for  the  purpose  of  aiding 
or  concealing  crime,  or  would  in  any  other  way  tend 
to  thwart  the  course  of  public  justice. 

If  this  were  not  so,  the  agents  of  the  company 
would,  in  some  cases,  become  particeps  criminis;  and 

[149] 


§119  .         RIGHTS    AND    DUTIES  [PART  II. 

would,  in  all  such  cases,  be  lending  their  aid,  for  a 
reward,  to  purposes  not  sanctioned  by  the  law.  The 
same  moral  and  legal  obligation  rests  upon  the  com- 
pany as  upon  individuals,  in  reference  to  their  con- 
tracts and  dealings  with  each  other ;  and  whatever 
the  law  would  not  compel  it  to  perform,  it  has  the 
right  to  refuse. 

In  some  of  the  American  States  the  transmission 
of  such  messages  is  expressly  prohibited  by  statute, 
and  in  some  of  them  it  is  made  a  criminal  offence  so 
to  do.1 

1  By  the  California  statute  it  is  provided :  "  If  any  agent  or  operator  in 
any  telegraph  office  shall  knowingly  send  by  telegraph  any  false  or  forged 
message,  purporting  to  be  from  such  officer"  (of  the  telegraph  company), 
"  or  any  other  person,  or  if  any  other  person  or  persons  shall  furnish,  or 
conspire  to  furnish,  to  such  agent  or  operator  to  be  so  sent,  any  such  mes- 
sage, knowing  the  same  to  be  false  or  forged,  with  the  intent  to  deceive 
and  injure  or  defraud  any  individual  or  corporation,  or  the  public,  such 
agent,  operator,  or  person  shall  be  deemed  guilty  of  a  misdemeanor,  and 
shall  be  punished  by  fine  not  exceeding  five  hundred  dollars,  or  imprison- 
ment not  to  exceed  six  months,  or  both  such  fine  and  imprisonment,  in  the 
discretion  of  the  Court."  Appendix  F. 

There  is  a  similar  provision  in  Pennsylvania.  Purdon's  Digest,  1861, 
crimes,  185 ;  and  in  Oregon,  Compilation  of  1866,  c.  54,  sec.  9.  Appendix 
EE. 

In  Ohio,  Act  of  March  31, 1865,  sec.  1 1,  it  is  provided  that,  if  any  agent, 
officer,  or  manager  of  any  telegraph  line,  operating  in  this  State,  or  any 
other  person,  shall  knowingly  transmit,  by  such  telegraph  line,  any  false 
communication  or  intelligence,  with  intent  to  injure  any  one,  or  to  specu- 
late in  any  article  of  merchandise,  commerce,  or  trade,  or  with  intent  that 
another  may  do  so,  or  shall  knowingly  send  or  deliver  any  despatch  that  is 
forged  or  not  authorized  by  the  person  whose  name  purports  to  be  signed 
thereto,  he  shall,  on  conviction,  pay  a  fine  not  exceeding  five  hundred 
dollars.  Appendix  CC. 

By  the  California  Act  of  April  18,  1862,  sec.  4,  it  is  provided,  that 
nothing  in  the  act  contained  shall  require  the  sending,  receiving,  or  de- 
livering of  any  message,  counselling,  aiding,  abetting,  or  encouraging 
treason  against  the  Government  of  the  United  States,  or  of  this  State,  or 
other  resistance  to  the  lawful  authority,  or  any  message  calculated  to  fur- 
[160] 


CHAP.  II.]  OF   TELEGRAPH    COMPANIES.  §  120 

§  120.  Third.  The  company  would  have  the  right 
to  withhold  the  delivery  of  any  message  transmitted 
over  its  line,  when  the  party  to  whom  it  is  sent 
refuses  to  pay  the  price  of  its  transmission,  in  all 
cases  where  the  message  had  not  been  prepaid. 

This  right  does  not  depend,  in  any  degree,  upon 
the  existence  of  the  relation  of  principal  and  agent 
between  the  company  and  the  person  to  whom  the 
message  is  sent,  or  upon  the  existence  of  any  contract 
between  them.  There  is  no  privity  of  contract  be- 
tween the  company  and  such  person  necessarily.1 

If  it  undertakes  to  send  a  message  over  its  wires, 
the  charge  to  be  collected  from  the  person  to  whom 
sent,  there  is  nothing  in  the  contract  with  the  sender 
of  the  message  that  will  prevent  it  from  making  the 
payment  of  the  charge  a  condition  precedent  to  the 
delivery  of  the  message ;  and  it  would  have  the  right 

ther  any  fraudulent  plan  or  purpose,  or  to  instigate  or  encourage  the  per- 
petration of  any  unlawful  act,  or  to  facilitate  the  escape  of  any  criminal  or 
person  accused  of  crime.  Appendix  F. 

By  the  Revised  Statutes  of  Kentucky,  1860,  vol.  i.  pp.  394,  395  :  "If 
any  agent,  officer,  or  manager  of  a  telegraph  line  constructed  in  this  State, 
or  other  person,  shall  knowingly  transmit,  on  or  through  the  same,  any 
false  communication  or  intelligence  with  intention  to  injure  any  one,  or  to 
speculate  on  any  article  of  merchandise,  commerce,  or  trade,  or  with  in- 
tent that  another  may  do  so;  or  if  any  agent,  officer,  or  manager  of  a  tele- 
graph line,  from  corrupt  or  improper  motives,  or  wilful  negligence,  shall 
withhold  the  transmission  of  messages  or  intelligence  for  which  the  custo- 
mary charges  have  been  paid  or  tendered,  he  shall  be  fined  not  less  than 
ten,  nor  more  than  five  hundred  dollars."  Appendix  O. 

1  De  Rutte  v.  N.Y.,  Alb.,  &  Buf.  Teleg.  Co.,  Court  of  Common  Pleas, 
N.Y.  1  Daly,  547 ;  N.Y.  &  Wash.  Prin.  Teleg.  Co.  v.  Dryburg,  35  Pa. 
St.  R.  298  ;  Bowen  &  McNamee  v.  The  Lake  Erie  Teleg.  Co.  1  Am.  Law 
Reg.  685  (Sept.  No.  1853).  In  the  case  of  N.Y.  &  Wash.  Teleg.  Co.  ». 
Dryburg,  it  is  intimated  that  the  telegraph  company  is  the  agent  of  both 
parties ;  but  it  would  seem  that  there  is  not  necessarily  privity  of  con- 
tract between  the  company  and  the  person  to  whom  the  message  is  sent. 

[151] 


§  121  RIGHTS    AND    DUTIES  [PART  II. 

to  withhold  the  message.  This  right  would  be  some- 
what analogous  to  the  lien  for  freight.  Whether  or 
not  there  would  be  an  obligation  upon  the  company 
in  such  case  to  notify  the  sender  of  the  non-delivery 
of  the  message,  will  be  hereafter  considered. 

§  121.  Fourth.  The  company  has  no  right  to  require 
persons  to  send  messages  by  its  line.  There  is  no 
obligation  resting  upon  any  one  to  send  communica- 
tions by  telegraph  in  the  absence  of  any  special  con- 
tract on  the  subject;  and  all  persons  have  the  right 
to  choose  which  of  two  or  more  different  lines  they 
will  engage  to  transmit  their  messages  for  them  ;  and 
in  case  they  should  select  the  longest  or  most  circui- 
tous of  two  routes,  the  company  owning  the  line  on 
the  shortest  route  has  no  right  of  action  against  them 
therefor,  unless  there  were  a  special  contract  with 
such  person.1 

1  This  principle  seems  to  be  too  clear  for  discussion ;  yet  this  very 
question  has  been  brought  before  the  courts.  The  Western  Teleg.  Co., 
appellants,  v.  George  C.  Penniman  &  John  King,  21  How.  U.S.  460; 
and  the  Western  Teleg.  Co.  v.  The  Magnetic  Teleg.  Co.  ib.  456.  The 
point  decided  is  the  same  in  both  cases. 

In  the  Western  Teleg.  Co.  v.  George  C.  Penniman  &  John  King, 
Mr.  Justice  McLean,  in  delivering  the  opinion  of  the  Court,  said,  "  This 
case  is  before  us  by  an  appeal  from  the  Circuit  Court  of  the  United  States 
for  the  district  of  Maryland. 

"  The  Western  Union  Telegraph  Company,  a  corporation  incorporated 
by  the  statutes  of  Maryland,  Virginia,  and  Pennsylvania,  have  filed  their 
bill  against  George  C.  Penniman  and  John  King,  citizens  of  Maryland, 
and  charged  them  with  the  violation  of  patented  rights  of  the  Western 
Telegraph  Company,  under  a  contract  made  with  Morse,  Vail,  &  Smith, 
dated  the  18th  of  March,  1840.  The  above-named  persons  are  alleged  to 
be  the  sole  proprietors  of  the  right  to  construct  and  use  Morse's  electro- 
magnetic telegraph,  by  him  invented  and  patented,  on  the  route  between 
Baltimore  in  the  State  of  Maryland,  and  New  York,  and  Harrisburg  in 
the  State  of  Pennsylvania,  for  and  in  consideration  of  thirty  dollars  per 
mile,  by  the  route  on  which  the  telegraph  has  been,  or  may  be,  constructed 
[152] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §   122 

§  122.  We  have  already  considered  the  rights  of 

between  the  points  and  places  aforesaid.  And  said  right,  through  their 
agent,  Amos  Kendall,  was  conveyed  unto  Joseph  Penniman  and  his  as- 
signee, to  construct,  between  the  points  and  places  aforesaid,  the  said  tele- 
graph, with  one  or  more  wires,  with  the  apparatus  for  working  the  same, 
and  the  improvements  thereon.  And  the  said  Morse  &  Co.  covenant  not 
to  grant  to  any  other  person  or  persons  the  right  to  construct  any  other 
line  of  telegraph  under  the  patent  aforesaid,  within  the  aforesaid  limits, 
either  in  a  direct  or  indirect  line. 

"  The  contract  between  Kendall,  as  attorney  of  Morse  &  Vail,  with  the 
Western  Telegraph  Company,  granted  to  it  in  due  form  the  privilege  of 
said  letters  patent  for  lines  of  telegraph  belonging  to  it,  between  Baltimore 
and  Wheeling,  with  a  branch  therefrom  to  Washington  city,  and  a  branch 
from  Brownsville  to  the  city  of  Pittsburg,  etc. ;  and  the  right  of  Francis  O. 
J.  Smith,  which  was  also  conveyed,  was  limited  to  the  Western  Telegraph 
Company's  existing  lines  from  Baltimore  in  the  State  of  Maryland,  to 
Wheeling  in  the  State  of  Virginia;  and  in  branches  to  Washington  and 
Pittsburg  cities ;  the  right  herein  conveyed  and  so  limited  by  said  territo- 
rial termini,  being  one-fourth  part  of  said  invention  and  letters  patent,  etc. 

"  The  complainants  pray  for  an  injunction,  and  that  an  account  may  be 
taken,  for  a  breach  of  its  patent  privileges. 

"  The  defendant  procured  an  assignment  of  Morse's  patented  electro  tel- 
egraph between  the  cities  of  Baltimore  and  Harrisburg,  and  afterwards  a 
like  assignment  from  him  between  Baltimore  and  Wheeling,  with  the  right 
of  a  branch  to  Pittsburg  and  Washington ;  and  it  is  alleged  that  complain- 
ants claim  the  right  to  telegraphic  business  on  the  Morse  plan  between 
these  points  ;  not  only  all  that  commence  and  end  at  these  several  points, 
but  all  that,  starting  at  remote  points,  have  to  reach  either  of  these  points 
by  coming  through  either  of  the  others. 

"  There  can  be  no  doubt  that  the  right  of  transmitting  on  the  lines 
conveyed  to  the  Western  Telegraph  Company,  are  as  full  and  complete  as 
would  have  been  the  rights  of  the  patentee,  had  he  never  assigned  them. 

"  The  assignment  of  Morse's  to  a  company  from  Pittsburg  to  Philadel- 
phia, and  from  Washington  to  Baltimore,  Philadelphia,  and  New  York,  it 
is  alleged,  has  enabled  the  defendant  to  take  messages  at  Harrisburg  from 
Wheeling,  directed  to  Baltimore  and  Washington,  and  other  Southern 
points ;  and  has  also,  in  like  manner,  taken  messages  from  the  Magnetic 
Company  between  Washington  and  New  York  at  Baltimore,  and  transmit- 
ted them  to  Pittsburg,  and  to  points  west  through  Pittsburg. 

"  And  this  was  done,  it  is  said,  in  conjunction  with  the  said  companies, 
in  order  to  get  the  business,  which,  but  for  said  combination,  would  and 
ought  to  have  come  by  complainants'  line. 

"  The  charges  against  Penniman  and  King  are  substantially  the  same 

[153] 


§  123  RIGHTS    AND    DUTIES  [PART  II. 

the  company  with  reference  to  its  powers  under  the 
charter,  and  the  construction  of  its  line.1 

§  123.  DUTIES.  —  There  are  duties  which  rest  upon 
telegraph  companies  that  are  entirely  independent  of 
particular  contracts  with  individuals.  These  duties 
they  owe  to  the  public,  which  are  incumbent  upon 
them,  because  of  the  public  nature  of  their  employ- 
ment, undertaking  as  they  do  the  discharge  of  a 
service,  in  the  proper  performance  of  which  all  per- 
sons may  be  alike  interested.2 

combinations  as  are  charged  against  the  Magnetic  Telegraph  Company ; 
and  we  can  only  say,  as  we  said  in  the  other  case,  that  assignees  may  claim 
a  protection  in  all  that  was  assigned  to  them ;  and  if,  in  any  respect,  their 
patent  has  been  infringed,  a  remedy  is  open  for  them.  But  it  does  not  ap- 
pear that  the  defendants  were  limited  as  to  the  use  of  the  lines  owned 
by  the  Western  Telegraph  Company,  although  the  points  on  their  lines 
were  shortest. 

"  Each  person,  in  using  a  telegraph  line,  is  free  to  select  his  own  convey- 
ance. There  are  several  things  which  recommend  telegraph  lines.  The 
machinery  should  be  kept  in  proper  order ;  strict  attention  should  be  given 
to  the  transmission  of  messages,  and  competent  persons  engaged  in  the 
office.  When  there  is  much  competition,  great  energy  is  required,  and  if 
this  be  wanting,  success  may  not  be  expected. 

"  The  principal  ground  of  complaint  in  the  bill  is,  that  the  business  of  the 
Western  Telegraph  Company  has  been  diverted  from  it,  and  thrown  upon 
other  lines,  greatly  to  its  injury ;  and  it  would  seem  that  circuitous  routes 
have  been  selected,  rather  than  the  more  direct  ones.  If  this  be  so,  does 
it  afford  a  ground  for  relief?  There  is  no  obligation  on  a  person  sending 
a  telegraphic  message  to  select  the  shortest  or  the  longest  line.  He  may 
consult  his  own  interest  or  choice  in  such  a  matter,  and  he  incurs  no  re- 
sponsibility to  any  one,  unless  he  has  entered  into  a  contract  to  forward  all 
such  messages  on  a  particular  line.  No  such  allegation  is  contained  in  the 
bill,  and  there  is  no  charge  that  the  Western  Telegraph  Company  has  been 
molested  in  the  exercise  of  its  patented  rights,  except  by  the  transfer  of 
its  business  to  other  lines  :  and  it  is  not  alleged  that  these  lines  are  pro- 
hibited from  carrying  messages  by  reason  of  their  contiguity  to  the  plain- 
tiffs' line." 

1  Ante,  cc.  4,  5,  Part  I. 

»  In  De  Rutte  v.  N.Y.,  Alb.,  &  Buf.  Teleg.  Co.  (N.Y.  1866),  1  Daly, 
547,  it  is  said  that  the  business  of  transmitting  messages  by  means  of  the 
[154] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  124 

§  124.  Among  these  duties  may  be  mentioned  the 
obligation  to  keep  the  telegraph  line  in  proper  work- 
ing order  for  the  transmission  of  messages.  The 
degree  of  care  and  diligence  which  the  company 
must  exercise  in  reference  to  this  matter  has  never 
been  discussed  in  any  of  the  cases  which  have  come 
before  the  courts.1  Whether  they  would  be  bound 
to  use  only  reasonable  care  and  diligence  ;  or  wheth- 
er, in  their  relations  to  the  sender  of  the  message, 
the  rigorous  rules  which  are  applied  to  common 
carriers  would  be  applied  to  them,  when  there  was 
any  derangement  of  their  line,  or  instruments  for 
operating,  will  perhaps  depend  in  a  great  degree 
upon  the  determination  of  the  question  as  to  what 
is  the  true  character  of  the  engagement  of  the  com- 
pany in  the  transmission  of  messages,  and  whether 
the  severe  rule  of  common  carriers  is  to  attach  to 
them;  and  upon  this  point,  as  we  shall  hereafter  see, 
there  is  much  diversity  of  opinion.2 

The  rule  as  to  railroad  companies  is,  that  they  are 
bound  to  use  the  utmost  care  and  diligence  in  provid- 
ing the  proper  and  necessary  machinery  for  conduct- 
ing their  business  ;  and  if  a  defect  might  have  been 
obviated  by  the  most  careful  and  thorough  examina- 
tion, the  company  is  liable.3 

electric  telegraph,  is,  like  that  of  common  carriers,  in  the  nature  of  a  pub- 
lic employment ;  for  those  who  engage  in  it  do  not  undertake  to  transmit 
messages  for  particular  persons,  but  for  the  public  generally. 

1  Mentioned  incidentally  in  a  late  case  in  the  Supreme  Court  of  Michi- 
gan ;  Western  Union  Teleg.  Co.  v.  Carew,  15  Mich.  525. 

*  See  infra,  c.  4,  §  188,  et  seq. 

a  New  Jersey  R.R.  Co.  v.  Kennard,  21  Pa.  St.  R.  203 ;  Ingalls  v.  Bills, 
9  Met.  (Mass.),  1.  The  rule  laid  down  in  New  York  is  very  severe  in 
this  respect  as  to  railroad  companies,  where  it  was  held  that  a  defect 

[155] 


§  125  RIGHTS    AND    DUTIES  [PART  II. 

§  125.  Considering  the  public  nature  of  the  em- 
ployment of  telegraph  companies,  the  great  impor- 
tance of  guarding  against  delays  in  the  transmission 
of  messages,  and  the  number  of  contingencies  that 
may  be  met  by  attention,  we  see  no  reason  why  tele- 
graph companies  should  not  be  held  to  the  same 
degree  of  care  and  diligence  in  providing  suitable 
machinery,  and  preserving  in  proper  condition  and 
working  order  then:  lines  and  all  necessary  appli- 
ances. 

We  might  suppose  a  case  where  the  consideration 
of  this  question  would  arise.  Let  us  suppose  that 
the  company  is  in  the  act  of  transmitting  a  message, 
and  that  the  time  at  which  it  is  to  be  received  by  the 
other  party  is  of  the  greatest  importance ;  as,  for 
instance,  the  object  of  the  message  being  to  enable 
the  person  to  whom  it  is  sent  to  act  upon  some 
sudden  rise  or  decline  in  the  market ;  and  while  so  in 
the  act  of  transmitting  it,  the  operating  instrument 
gets  out  of  order  and  will  not  work,  and  this,  be- 
cause of  s6me  defect  which  by  the  utmost  care  and 
diligence  could  have  been  corrected ;  and  by  reason 
thereof  the  company  fails  to  send  the  message,  or  to 
send  it  in  time,  by  which  damage  is  suffered.  Here 
it  would  seem  that  there  should  be  the  same  duty 
resting  upon  telegraph  companies,  in  this  respect, 

•which  might  have  been  discovered  by  the  manufacturer  in  the  progress 
of  the  work,  by  the  application  of  tests  known  to  persons  skilled  in  the 
business,  would  render  the  company  liable.  Hegeman  v.  Western  R.R. 
Corp.  3  Kernan,  9.  The  cases  in  other  States  do  not  go  to  this  extent, 
and  the  company  is  not  liable  where  the  defect  could  not  have  been  de- 
tected by  the  utmost  care  and  diligence,  although  it  might  have  been 
detected  by  the  manufacturer.  See  Ingalls  v.  Bills,  supra. 
[166] 


CHAP.  II.]  OF   TELEGRAPH    COMPANIES.  §  127 

as  upon  railroad  companies,  and  the  same  degree  of 
care  and  diligence  should  be  required. 

§  126.  It  would  also  be  the  duty  of  the  telegraph 
company  to  provide  competent  and  skilful  operators  ; 
and  other  agents  and  servants  in  all  respects  compe- 
tent for  the  discharge  of  their  particular  duties. 
And  the  company  is  responsible,  not  only  for  their 
possessing  such  skill,  but  for  the  continued  applica- 
tion of  it  in  the  particular  business  in  which  they  are 
engaged.  This  would  be  especially  so  in  the  case  of 
the  operator,  whose  duties  require  the  exercise  of 
great  skill  and  care,  as  well  as  of  that  peculiar  knowl- 
edge which  is  necessary  to  the  ready  comprehension 
and  use  of  the  telegraphic  symbols,  the  want  of  which 
is  a  fruitful  source  of  mistakes  and  delays.  For  fail- 
ure in  these  respects,  upon  the  part  of  the  operator 
or  other  agents,  their  employers  would  be  liable. 

§  127.  They  should  keep  their  lines  at  all  times  in 
working  order,  so  far  as  it  is  possible,  in  the  employ- 
ment of  human  agencies,  to  accomplish  this  object. 
They  must  have  their  posts  firmly  and  securely 
erected,  their  wires  of  the  proper  material  and  size, 
and  properly  adjusted  upon  the  poles,  with  all  neces- 
sary fixtures,  insulators,  etc. 

And  we  think  it  would  be  their  duty  to  avail  them- 
selves of  any  new  improvement  in  the  construction  of 
their  line  which  had  been  sufficiently  tested  to  justify 
the  conviction  that  it  was  superior  to  the  mode  of 
construction  already  adopted.1 

1  So  held  in  case  of  railways.  See  Pierce,  Am.  Railroad  Law,  pp. 
474,  475;  Hegeman  v.  Western  R.R.  Corp.  16  Barb.  353;  s.c.  3  Kernan, 
9 ;  Nash.  &  Chattanooga  R.R.  v.  Messino,  1  Sneed  R.  220. 

[157] 


§  129  RIGHTS    AND    DUTIES  [PART  II. 

§  128.  It  is  their  duty  to  transmit  messages  for  all 
who  apply,  without  discrimination,  except  in  those 
cases  where  they  are  permitted  to  give  preferences 
by  express  statutory  provisions  ;  provided  compliance 
be  made  with  the  rules  and  regulations  which  the 
company  may  legally  adopt.  This  is  a  duty  arising 
out  of  the  public  nature  of  their  employment,  and 
independent  of  contract  with  individuals.1 

It  is  enjoined  by  statute  in  England,  Canada,  and 
all  the  American  States  which  have  general  statutes 
on  the  subject  of  telegraphs. 

The  provision  in  all  these  statutes  is  substantially 
as  follows :  That  it  shall  be  the  duty  of  the  owner,  or 
the  association  owning  the  telegraph  line,  to  receive 
despatches  from  and  for  other  telegraph  lines  and 
associations,  and  from  and  for  any  individual,  and,  on 
payment  of  their  usual  charges  against  individuals  for 
transmission,  as  established  by  their  rules  and  regu- 
lations, to  transmit  the  same  with  impartiality  and 
good  faith ;  and  in  many  of  the  statutes  a  penalty  is 
imposed  for  a  violation  of  this  provision.2 

§  129.  It  is  also  their  duty  to  transmit  messages  in 
the  order  of  time  in  which  they  are  received.  This 
would  be  their  duty  in  the  absence  of  any  require- 
ment so  to  do  by  statute  ; 3  although  this  duty  is  also 
enjoined  by  the  English  and  American  general  stat- 
utes on  the  subject. 

1  Crouch  v.  London  &  N.W.  R.R.  Co.  14  C.B.  255,  25  Eng.  Law  & 
Eq.  R.  287;  Johnson  ».  Midland  R.  Co.  4  Exch.  367;  N.J.  Steam  Nav. 
Co.  v.  Merchants'  Bank,  6  How.  U.S.  344. 

1  See  Appendix.  See  case  of  Reuter  v.  Elec.  Teleg.  Co.  quoted,  post, 
§  133  in  note  1. 

3  Wibert  t?.  N.Y.  &  Erie  R.R.  Co.  2  Kernan,  245;  B.C.  19  Barb.  36. 
[158] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  130 

§  130.  It  is  made  their  duty  by  statute  in  England, 
Canada,  The  United  States,  and  in  many  of  the  States, 
to  give  preference  to  government  despatches,  in  the 
transmission  over  their  lines.1 

1  By  the  26  &  27  Viet.  c.  112,  sec.  48,  it  is  provided  that  messages  on 
her  Majesty's  service  shall  have  priority  over  all  other  messages,  and  the 
company  shall,  as  soon  as  reasonably  may  be,  transmit  the  same,  and  shall, 
until  transmission  thereof,  suspend  the  transmission  of  all  other  messages. 
Appendix  A. 

By  the  Consolidated  Statutes  of  Canada,  c.  67,  sec.  15,  it  is  provided, 
that  any  message  in  relation  to  the  administration  of  justice,  arrest  of  crimi- 
nals, the  discovery  or  prevention  of  crime,  and  government  messages  or 
despatches,  shall  always  be  transmitted  in  preference  to  any  other  mes- 
sage or  despatch,  if  required  by  persons  connected  with  the  administration 
of  justice,  or  any  person  thereunto  authorized  by  the  Provincial  Secre- 
tary. Appendix  B. 

By  the  act  of  Congress  of  July  24,  1866,  —  entitled,  "  An  act  to  aid  in 
the  construction  of  telegraph  lines,  and  to  secure  to  the  government  the 
use  of  the  same  for  postal,  military,  and  other  purposes,"  and  which  has  ref- 
erence to  "  any  telegraph  company  now  organized,  or  which  may  here- 
after be  organized,  under  the  laws  of  any  State  of  this  Union,"  —  sec.  2,  it 
is  provided,  that  telegraph  communication  between  the  several  depart- 
ments of  the  Government  of  the  United  States  and  their  officers  and 
agents  shall,  in  their  transmission  over  the  lines  of  any  of  said  companies, 
have  priority  over  all  other  business,  and  shall  be  sent  at  rates  to  be  an- 
nually fixed  by  the  Postmaster-General.  Appendix  C. 

The  California  act  of  1861,  c.  104,  sec.  6,  requires  that  communications 
to  and  from  Government  and  State  officers,  on  official  business,  shall  be 
entitled  to  priority  over  all  other  communications.  Appendix  F. 

In  Connecticut  the  requirement  is,  that  communications  from  officers 
of  justice  shall  take  precedence  over  all  others.  Revision  of  1866,  sec. 
573.  Similar  provisions  in  Indiana,  Missouri,  and  Ohio.  Appendix  G, 
L,  W,  CC. 

The  Laws  of  Tennessee,  Code  of  1858,  sec.  1320,  enact,  "  In  considera- 
tion of  the  right  of  way  over  public  property  herein  conceded,  every  tele- 
graph company  shall,  in  case  of  war,  insurrection,  or  civil  commotion  of 
any  kind,  and  for  the  arrest  of  criminals,  give  immediate  despatch,  at  the 
usual  rate  of  charges,  to  any  message  connected  therewith,  of  any  officer 
of  this  State,  or  of  the  United  States.  Appendix  II. 

There  is  the  same  provision  in  the  laws  of  Oregon,  Compilation  of 
1866,  c.  54,  sec.  6 ;  and  in  Louisiana,  Revised  Statutes,  1856,  116,  152. 
Appendix  DD,  P. 

[159] 


§  132  RIGHTS    AND    DUTIES  [PART  II. 

• 

§131.  A  preference  has  also  been  given,  by  the 
provisions  of  the  statutes  of  many  of  the  American 
States,  to  intelligence  of  general  and  public  interest, 
such  as  "  press  despatches,"  over  private  messages ; 
these  statutes  provide  that  an  arrangement  may  be 
made  with  the  proprietors  or  publishers  of  news- 
papers, for  the  transmission,  for  the  purpose  of  publi- 
cation, of  intelligence  of  general  and  public  interest, 
out  of  its  order.1 

§  132.  In  the  absence  of  any  provision  by  statute, 
there  can  be  little  doubt  but  that  it  would  be  the  duty 
of  telegraph  companies  to  postpone  private  despatches 
for  those  connected  with  the  operations  of  govern- 
ment, or  for  the  furtherance  or  protection  of  public 
justice. 

Whether  they  would  have  the  right,  when  not  ex- 
pressly authorized,  to  make  arrangements  with  indi- 
viduals or  associations,  for  the  transmission  of  what  is 
known  as  "  press  despatches,"  or  despatches  conveying 
intelligence  in  reference  to  political,  commercial,  or 
other  affairs  of  general  interest,  with  a  view  to  their 
publication  at  the  place  of  destination,  and  in  so 
doing  to  give  such  despatches  preference  in  the  time 
of  transmission  over  those  of  a  private  character,  is 
not  free  from  difficulty  or  doubt.  And  the  doubt 
would  be  increased  in  those  cases  where  they  are 
required  by  statute  to  send  for  all  alike,  and  in  the 
order  of  time  in  which  they  are  received  for  trans- 
mission. 

It  might  be  urged  in  the  support  of  the  right,  that 

1  They  are  so  authorized  by  statute  in  New  York,  Missouri,  Wiscon- 
sin, California.     Appendix  AA,  W,  LL,  F. 
[160] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  133 

the  public  at  large  are  deeply  interested  in  despatches 
of  this  character;  that  they  exert  a  vast  and  con- 
trolling influence  over  the  commercial  and  monetary 
affairs  of  the  world ;  and  those  of  a  political  char- 
acter are  not  only  of  public  interest,  but  frequently 
affect  the  social  and  industrial  interests  of  society; 
that  it  is  essentially  in  this  respect  that  the  telegraph 
becomes  an  instrument  of  great  public  benefit ;  and 
that  if  such  communications  must  await  their  turn, 
its  public  utility  would  be  much  curtailed.  Still 
the  question  would  recur,  must  not  all  these  consid- 
erations yield  to  the  express  requirements  of  the 
statute  1 

§  133.  As  before  stated,  it  is  the  duty  of  telegraph 
companies  to  treat  all  their  customers  impartially  and 
without  discrimination,  in  the  transmission  of  their 
messages.  By  the  charter  of  the  International  Tele- 
graph Company  in  England,  it  was  provided  that  its 
lines  "  should  be  open  for  the  sending  and  receiving 
of  messages  by  all  persons  alike,  without  favor  or 
preference,  and  subject  to  such  equitable  charges  and 
such  reasonable  regulations  as  may  from  time  to  time 
be  made  by  the  said  company." 

A  case  came  before  the  Court  of  Queen's  Bench, 
of  Reuter  v.  The  Electric  Telegraph  Company,1  in 


1  6  Ellis  &  Blackburn,  Q.B.,'88  Eng.  Com.  Law  R.  341,  Easter  Term, 
1856. 

The  facts,  so  far  as  they  are  material  to  this  point  in  the  case,  were 
as  follows :  The  defendant,  the  International  Telegraph  Company,  was 
incorporated  by  Royal  Charter,  bearing  date  29th  July,  1853,  for 
the  purpose  of  establishing  telegraphic  communication  between  Great 
Britain  and  other  countries,  by  means  of  a  submarine  telegraph  to  Hol- 

11  [161] 


§  133  RIGHTS    AND    DUTIES  [PART  II. 

which  a  construction  was  given  to  this  clause  of  the 
charter.     An  agreement  was  made  between  the  plain- 


land.  The  charter  contained  provisions  for  securing  to  her  Majesty's 
government  the  use  of  the  telegraph  for  State  purposes,  and  the  following 
proviso :  "  Provided  always,  and  this  our  Royal  Charter  is  upon  the  ex- 
press condition,  that  subject  to  the  aforesaid  provisions  given  us  and  our 
aforesaid  officers  on  our  behalf  as  aforesaid  for  our  service,  such  telegraph 
shall  be  open  for  the  sending  and  receiving  of  messages  by  all  persons 
alike,  without  favor  or  preference,  and  subject  to  such  equitable  charges, 
and  to  such  reasonable  regulations,  as  may  from  time  to  time  be  made  by 
the  said  company."  The  case  set  out  an  agreement,  dated  the  14th 
September,  1853,  between  the  plaintiff  and  the  company,  by  which  the 
plaintiff,  who  had  been  in  business  on  the  continent  as  a  collector  and 
transmitter  of  messages,  agreed  for  a  year,  and  from  thence,  or  so  long  as 
the  parties  pleased,  to  send  all  messages  through  the  company's  telegraph, 
except  where  the  sender  of  the  message  had  specially  directed  it  should  be 
sent  in  some  other  way.  The  company  agreed  to  allow  him  seven  per 
cent  on  the  amount  they  should  receive ;  and  the  plaintiff  bound  himself 
not  to  enter  into  any  contract  with  any  other  telegraph  company  during 
the  continuance  of  this  agreement.  This  instrument  was  under  the  seal  of 
the  company. 

It  appeared  that  after  making  this  agreement,  and  while  the  same  was 
in  force,  there  was  a  parol  agreement  made  with  the  plaintiff  by  the  com- 
pany, through  its  chairman,  by  which  it  was  agreed,  on  the  representation 
of  the  plaintiff,  that  he  was  about  to  establish  a  new  class  of  business,  that 
plaintiff  should  be  allowed  50  per  cent  on  all  messages  sent  or  received  by 
him  through  the  company's  lines,  containing  public  intelligence :  this 
agreement  was  as  follows:  "  12th  January,  1854.  That  during  pleasure, 
50  per  cent  be  returned  to  Mr.  Reuter  on  all  messages  transmitted  by  him 
containing  public  intelligence."  This  was  the  entry  on  the  company's  books. 
The  case  also  set  out  a  previous  correspondence,  comprising,  amongst 
other  documents,  the  prospectus  of  the  plaintiff's  new  undertaking,  by 
which  it  appeared  that  he  proposed  that,  in  addition  to  his  business  of  col- 
lector and  transmitter  of  messages  for  persons  who  desired  to  send  them, 
the  plaintiff  was  to  become  collector  of  public,  political,  and  commercial 
news,  which  he  proposed  to  transmit  to  this  country,  and  communicate  to 
subscribers.  The  following  letter  was  sent  by  the  plaintiff  to  the  secre- 
tary of  the  company  :  "  London,  31st  December,  1853.  Dear  Sir,  —  By 
the  enclosed  circular  you  will  observe  that  my  new  undertaking  will  com- 
mence on  1st  of  January,  1854 ;  and  as,  according  to  an  arrangement 
with  your  chairman,  50  per  cent  will  be  returned  to  me  of  all  charges 
[162] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §   133 

tiff  and  the  company,  by  which  the  plaintiff  was  to 
collect  public  intelligence  and  transmit  it  exclusively 

of  despatches  which  I  may  receive  or  send  through  your  lines,  I  beg  to  ask 
•which  way  you  desire  our  accounts  to  be  kept :  if  I  am  to  pay  you  the 
whole  amount  for  the  messages,  or  whether  I  am  only  to  pay  you  half  of 
the  usual  charge  each  time."  He  was  answered,  that  the  company  pre- 
ferred as  a  matter  of  convenience  that  he  should  pay  in  the  whole  charge 
for  the  messages,  and  receive  back  his  percentage  subsequently.  After 
this,  accounts  were,  from  time  to  time,  sent  in  on  this  principle,  in  which 
the  company  were  charged  50  per  cent  on  such  messages ;  and  these  ac- 
counts were  paid.  Afterwards,  certain  amounts  remaining  unpaid,  the 
plaintiff  sued  the  company  upon  this  agreement. 

The  case  was  argued  before  Lord  Campbell,  C.J.,  Wightman,  Earle, 
and  Crompton. 

Sir  Fitzroy  Kelly,  who  was  for  the  company,  among  other  objections  to 
the  recovery,  said,  that  the  contract  was  altogether  ultra  vires  of  the  direc- 
tors, who  made  it  on  behalf  of  the  company  ;  that  it  was  not  a  part  of  the 
business  of  the  company  to  collect  particular  news ;  and  the  plaintiff  was 
already  bound  to  transmit  all  his  messages  by  the  company's  line ;  and, 
besides,  that  the  effect  of  the  agreement  was  to  give  the  plaintiff  50  per 
cent  advantage  over  his  competitors,  and  so  to  frustrate  the  provision  in 
the  charter  providing  for  equal  charges. 

Lord  Campbell,  C.J.,  in  delivering  the  opinion  of  the  Court,  after  hold- 
ing that  the  company  was  bound  by  the  contract,  said,  "  We  have  only 
further  to  dispose  of  Sir  Fitzroy  Kelly's  last  objection,  founded  on  the 
provision  in  the  charter,  that  the  telegraph  of  the  company  '  shall  be  open 
for  the  sending  and  receiving  of  messages  by  all  persons  alike,  without 
favor  or  preference,  subject  to  such  equitable  charges  and  such  reasonable 
regulations  as  may  from  time  to  time  be  made  by  the  said  company.'  It  is 
urged  that  this  agreement  gives  a  preference  to  the  plaintiff  by  allowing 
him  to  send  his  messages  at  half  price.  Grave  doubts  may  be  entertained 
whether  the  proviso,  although  it  may  be  made  the  foundation  of  complaint 
against  the  company,  can  be  rendered  available  to  them  in  resisting  a  de- 
mand under  a  contract  into  which  they  have  entered.  But  the  allowance 
to  the  plaintiff  seems  rather  a  remuneration  to  him  for  his  services  in  col- 
lecting public  intelligence  and  bringing  custom  to  the  company,  than  any 
preference  or  partiality  to  him  in  the  use  of  the  telegraph ;  and  there  is 
nothing  to  show  that  their  dealings  with  him,  which  they  now  contend  to 
be  illegal,  are  not  according  to  '  equitable  charges '  and  '  reasonable  regu- 
lations.' " 

Judgment  was  accordingly  given  for  the  plaintiff. 

This  holding  may  be  considered  the  more  important  from  the  fact  that 

[163] 


§  135  RIGHTS    AND    DUTIES  [PART  II. 

over  the  defendants'  line.  Fifty  per  cent  on  all  mes- 
sages sent  or  received  by  him  through  the  company's 
line  containing  public  intelligence,  should  be  allowed 
to  the  plaintiff;  in  other  words,  his  messages  were  to 
be  sent  for  half  price.  The  Court  held  that  this  was 
not  in  violation  of  the  statute ;  for  this  arrangement 
must  be  considered  rather  in  the  light  of  a  remunera- 
tion to  the  plaintiff  for  his  services  in  collecting  the 
public  intelligence  and  in  bringing  custom  to  the  com- 
pany than  any  preference  or  partiality  to  the  plaintiff 
in  the  use  of  the  telegraph  line. 

The  Court  further  express  a  doubt  whether,  even 
if  this  arrangement  had  been  in  violation  of  the  pro- 
vision of  the  statute  above  quoted,  the  company,  having 
entered  into  it,  would  be  allowed  to  avail  itself  of  such 
defence  in  resisting  a  demand  against  it  arising  out  of 
the  contract. 

§  134.  It  is  the  duty  of  the  company  to  fix  its  rate 
of  charges,  and  to  make  them  certain  and  uniform. 
And  it  is  their  duty  to  transmit  all  messages  according 
to  the  rates  which  they  advertise.  This  duty  is  in 
many  States  imposed  by  statute. 

§  135.  Under  the  revenue  laws  of  the  United  States, 
it  was  the  duty  of  the  company  to  require  all  messages 
to  be  stamped  before  they  are  transmitted  over  their 
lines.  By  Act  of  Congress,  1862,  sec.  104,  it  was  made 
illegal  for  telegraph  operators  to  receive  unstamped 
messages  from  the  writers.  The  stamp  was  to  be  af- 
fixed and  cancelled  before  the  message  was  transmitted. 

this  provision  for  the  sending  of  messages  for  all  persons  alike,  is  to  be 
found  in  nearly  all  the  general  statutory  provisions  on  the  subject  of  tele- 
graphs. 

[164] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §   137 

But  it  was  provided  that  "  messages  transmitted  by 
telegraph  and  railroad  companies  over  their  own 
wires,  on  their  own  business,  for  which  they  receive 
no  pay,  do  not  require  stamps." l 

§  136.  It  is  also  the  duty  of  the  company  to  require 
its  agents  and  servants  to  observe  secrecy  in  reference 
to  all  private  messages.  This  is,  as  a  general  thing, 
provided  for  by  statute,  and  a  penalty  inflicted  for  its 
violation ;  in  some  States  it  is  made  a  criminal  offence.2 
But,  in  the  absence  of  such  requirement  by  statute,  it 
is  manifest  that  this  would  be  their  duty. 

§  137.  From  the  very  nature  of  the  bailment,  if  it 
may  be  called  such,  it  is  incumbent  on  the  company 
to  preserve  secrecy  in  regard  to  the  communication 
with  which  it  is  intrusted.  Not  only  is  the  telegraph 
used  as  the  medium  for  the  transmission  of  communi- 
cations between  individuals  in  relation  to  contracts, 
where  secrecy  is  essential  to  the  full  enjoyment  of  the 
benefits  which  the  contract  contemplates,  but  in  a 
larger  number  of  cases,  perhaps,  the  telegraph  is  used 
to  transmit  communications  of  a  strictly  private  and 
personal  character,  in  which  all  the  sacredness  of  con- 
fidential relationship  is  involved,  and  which,  if  they 
could  be  exposed  by  the  agents  and  operators  of  tele- 
graph companies  with  impunity,  would  destroy  much 
of  their  public  usefulness.  If  such  were  not  their 
duty,  there  would  be  "  an  impossibility  of  maintaining 
the  confidence  necessary  to  the  existence  of  private 

1  For  the  rulings  and  decisions  in  regard  to  stamping  messages,  taken 
from  Boutwell's  Direct  and  Excise  Tax  System  of  the  United  States, 
1863,  see  Appendix  D.  The  law  has  been  changed. 

3  Post,  c.  9. 

[165] 


§  138  RIGHTS    AND    DUTIES  [PART  II. 

correspondence." l  This  is  a  general  principle,  appli- 
cable to  all  cases  of  confidential  relations  between  the 
parties ;  as  said  by  Vice-Chancellor  Wigram  in  Tip- 
ping v.  Clarke,  every  clerk  employed  in  a  merchant's 
counting-house  is  under  an  implied  contract  that  he 
will  not  make  public  that  which  he  learns  in  the  exe- 
cution of  his  duty  as  clerk.2 

§  138.  But,  as  we  shall  see  hereafter,  this  obliga- 
tion of  secrecy  does  not  extend  to  cases  where  the 
agent  or  operator  is  called  upon  to  make  disclosures 
in  courts  of  justice  in  reference  to  the  contents  of 
messages,  or  when  made  to  public  authorities  for  the 
prevention  of  crime,  or  for  the  purpose  of  leading  to 
the  detection  or  punishment  of  crime.3 

For  a  wilful  breach  of  this  duty  of  secrecy  in  rela- 
tion to  messages,  the  tortfeasor  is  of  course  liable ;  but 
there  are  cases  in  which  the  company  would  be  also 
liable.  If  an  operator,  hi  receiving  a  message,  or 
taking  it  off  the  wires,  as  it  is  sometimes  called,  should 
read  it  aloud,  in  order  that  strangers  should  hear  and 
understand,  we  think  it  would  be  in  accordance  with 
the  authorities  and  sound  law,  that  the  company  should 
be  held  answerable  for  the  injury.  The  company  can 
only  perform  the  duty  of  sending  and  receiving  a 
message  through  the  intervention  of  an  agent ;  and 
if  he  may  wilfully  and  corruptly  interfere  with  com- 
mercial transactions,  or  malignantly  expose  family 
affairs,  and  not  involve  the  company,  such  a  ruling 

1  Henisleru.  Freedman,  2  Par.  (Penn.)  Cases,  274. 

*  Tipping  ».  Clarke,  2  Hare,  383 ;  Morison  v.  Moat,  9  Hare,  241 ;  Wil- 
liams v.  Williams,  8  Merrivale,  157;  Yovatt  ».  Winyard,  1  Jac.  &  W. 
894  ;  Prince  Albert  v.  Strange,  2  DeG.  &  S.  652,  697. 

3  Post,  c.  7,  evidence,  §  380. 
[166] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  138(2 

would  stimulate  the  wicked ;  whilst,  at  the  same  time, 
good  men  would  be  convinced  that  their  chances  for 
indemnity  rested  alone  upon  the  solvency  of  treacher- 
ous agents.  We  have  seen  no  instance  in  the  litigated 
cases  where  telegraph  companies  have  claimed  such 
immunity. 

But  still  there  are  two  opinions,  two  classes  of 
cases,  as  to  the  general  responsibility  of  the  supe- 
rior for  the  torts  of  agents.  As  already  indicated,1 
however,  the  authorities  are  numerous  and  highly  re- 
spectable, and  conclusive  except  where  controlled  by 
binding  local  decisions,  which  hold  the  former  liable 
for  the  wilful  acts  of  the  latter,  when  done  in  the 
performance  of  duties  assigned;2  and,  if  there  be 
cases  proper  for  the  enforcement  of  the  doctrine,  this 
is  one  of  them.  But  we  place  it  also  upon  the  ground 
that  the  common  carrier  is  answerable  for  torts  of  his 
agents  in  respect  to  articles  or  commodities  bailed  to 
him  in  the  line  of  his  business. 

§  138  a.  Aside  from  the  statutory  and  common  law 
duty  of  good  faith  in  the  transmission  of  messages  for 
the  public,  there  is  another  sense  in  which  telegraph 
companies  may  become  responsible  for  mala  fides 
and  malicious  use  of  its  franchises.  A  libel  is  any 
false,  malicious,  and  personal  imputation,  effected  by 
any  writings,  pictures,  or  signs,  tending  to  alter  the 
party's  situation  in  society  or  business,  for  the  worse ; 

1  Ante,  §69. 

1  Phila.,  Wilm.,  &  Bait.  R.R.  Co.  v.  Quigley,  21  How.  U.S.  202 ;  Yar- 
borough  0.  The  Bank  of  Eng.  16  East,  6  ;  Hay  v.  Cohoes  Co.  3  Barb.  42 ; 
Bloodgood  v.  M.  &  H.  R.R.  Co.  18  Wend.  9  ;  Chestnut  Hill  Turnpike  Co. 
v.  Rutter,  4  Serg.  &  R.  6 ;  Pierce,  Am.  Railroad  Law,  232 ;  Story,  Agency, 
§  308 ;  and  also  1  Red.  Law  of  Railways,  §  130. 

[167] 


§  138  a  RIGHTS    AND    DUTIES  [p ART  II. 

and  a  corporation  may  become  responsible  for  its 
publication,  even  in  punitive  damages.1 

In  the  transmission  of  messages  for  publication, 
especially  letters  and  news  for  the  public  newspapers, 
it  would  seem  that  telegraph  companies  assume  a 
responsibility  similar  to  that  of  the  publishers.  By 
their  agency  libellous  matter  would  be  necessarily 
brought  to  the  knowledge  of  operators,  who  other- 
wise would  not  have  cognizance  of  it.  By  their  im- 
mediate and  indispensable  agency,  "  press  despatches  " 
and  the  like  are  brought  before  the  public.  In  com- 
munications specially  designed  for  the  press,  we  see 
no  reason  why  they  should  not  stand  upon  the  same 
footing  with  publishers.  But  in  strictly  private  mes- 
sages the  reason  for  so  stringent  a  rule  does  not 
obtain;  perhaps  should  not  be  applied  at  all.2  Al- 
though agents  do  thus  learn  the  contents  of  messages 
that  might  be  held  libellous,  and  that  they  could  not 
otherwise  know,  yet  they  only  do  so  from  the  neces- 
sity of  the  case,  and  under  statutory  permission  to  do 
this  very  thing;  and  if  the  libellous  matter  should 
be  sacredly  kept  secret,  the  company  should  not  be 
answerable  for  a  subsequent  publication  by  the  re- 
ceivers of  the  message.  Their  duties  in  this  respect 
are  quite  like  those  of  carriers  who  transport  packages 
of  handbills,  newspapers,  or  any  written  or  printed 
matter,  or  other  things,  indifferently  and  alike,  not 


1  Barber  ».  Lane,  3  Met.  (Ky.)  311;  Vicksburg  &  J.  R.R.  Co.  v. 
Patten,  31  Miss.  156  ;  New  Orleans  J.  &  G.N.  R.R.  Co.  v.  Hurst,  36  Miss. 
660 ;  Hopkins  ».  Atlantic  &  St.  L.  R.R.  Co.  36  N.H.  9 ;  Aldrieh  v.  The 
Press  Printing  Co.  9  Minn.  133;  Detroit  Daily  Post  Co. ».  McArthur, 
16  Mich.  447.  *  White  v.  Nichols,  3  How.  U.S.  286. 

[168] 


CHAP.  II.]  OF    TELEGRAPH    COMPANIES.  §  138  a 

regarding  them  otherwise  than  as  commodities  to  be 
used  as  consignees  may  determine.  The  use  of  the 
telegraph  by  the  proprietors,  for  private  and  corpora- 
tion purposes,  outside  of  all  agency,  alone  or  conjointly 
with  others  in  interest,  must  carry  with  it  the  respon- 
sibility that  rests  upon  other  corporations  in  respect 
to  libellous  matter. 


[169] 


§  141  CONTRACTS    IN    RELATION  [PART  II. 


CHAPTER  III. 

CONTRACTS    IN    RELATION    TO    MESSAGES. 

§  139.  WE  come  now  to  consider  the  relation  in 
which  the  sender  and  the  receiver  of  the  message 
stand  to  the  telegraph  company  in  reference  to  its 
transmission  and  delivery,  and  the  reciprocal  rights 
and  obligations  of  the  parties  arising  out  of  this  con- 
tract. 

§  140.  The  view  which  we  have  taken  of  the 
nature  of  the  engagement  of  telegraph  companies  in 
respect  to  messages  is,  that  it  is  similar  to  that  of 
bailment,  but  differing  from  the  obligation  of  ordinary 
bailees,  who  have  the  option  to  undertake  the  labor 
or  not ;  whereas,  because  of  the  public  nature  of  the 
employment  of  telegraph  companies,  they  are  bound, 
in  good  faith,  without  favor  or  preference,  to  perform 
the  service  for  all  persons  who  may  apply,  or  submit 
to  an  action  for  damages  if  they  refuse.1 

§  141.  Whatever  may  be  the  character  and  extent 
of  the  responsibility  which  the  law  imposes  upon 
telegraph  companies,  —  whether  it  be  that  extraordi- 
nary responsibility  which  will  make  them  the  insurers 
of  the  safe  and  correct  transmission  of  the  message 

1  N.J.  Steam  Navigation  Co.  ».  Merchants'  Bank,  6  How.  U.S.  344  ; 
The  Huntress,  Daveis'  C.C.  R.  86 ;  Johnson  v.  Midland  R.R.  Co.  4  Exch. 
372 ;  Bissell  v.  N.Y.  Central  R.R.  Co.  25  N.Y.  442. 
[170] 


CHAP.  III.]  TO    MESSAGES.  §  .143 

intrusted  to  them,  or  a  less  severe  responsibility, — 
still  there  can  be  no  doubt  but  that  telegraph  com- 
panies have  the  right  to  limit  that  responsibility, 
whatever  it  may  be,  by  express  contract,  as  common 
carriers  may  do.  We  think  that  both  are  governed 
by  the  same  rules  in  this  respect,  both  as  to  law  and 
evidence. 

§  142.  In  Wann  v.  Western  Union  Telegraph  Co.1 
it  was  held,  that  telegraph  companies,  whether  regard- 
ed as  common  carriers  or  bailees,  may  specially  limit 
their  liabilities,  subject  to  the  qualification  that  they 
will  not  be  protected  from  the  consequences  of  gross 
carelessness. 

§  143.  In  Me  Andrew  v.  The  Electric  Telegraph 
Company,2  Jervis,  C.J.,  said,  "  The  company  would  be 
in  the  nature  of  a  carrier  who  would  have  a  certain 
liability  imposed  upon  him  at  common  law  ;  but  they 
might  limit  their  liability  by  special  notice,  as  a 
carrier  could,  subject  to  the  condition  or  qualification 
that  they  could  not  limit  it  to  the  extent  of  protecting 
themselves  against  the  consequences  of  gross  negli- 
gence." 

In  the  same  case,  Willes,  J.,  said,  "  Now,  so  far  back 
as  the  year  1803,  it  appears  by  the  case  of  Izett  v. 
Mountain,3  to  have  been  considered  so  clear  that 
counsel  declined  to  argue  that  a  carrier,  upon  whom 
is  imposed  the  liability  of  an  insurer  by  the  common 
law,  could  not  protect  himself  by  such  a  notice  as 
was  equivalent  to  this  condition"  (i.e.,  that  the  com- 

1  37  Missouri  R.  472. 

2  33  Eng.  Law  &  Eq.  180, 17  C.B.  (84  E.  C.L.  R.)  3. 

3  4  East,  371. 

[171] 


§  144          CONTRACTS  IN  RELATION       [PART  II. 

pany  would  not  be  responsible  for  unrepeated  mes- 
sages) ;  "  the  carrier's  notices  being  nothing  more  than 
conditions  imported  into  the  contracts  between  them 
and  their  customers.  If,  therefore,  at  common  law, 
such  a  condition  might  have  been  imposed  on  the 
plaintiffs,  it  is  clear  that  under  this  statute  there  is 
nothing  to  prevent  the  company  from  imposing  this 
condition." 

In  De  Rutte  v.  N.Y.,  Alb.,  &  Buf.  Teleg.  Co.,1 
it  is  said  that  telegraph  companies  "  may  limit  their 
liability  by  a  special  acceptance  when  the  message 
is  (Delivered  to  them." 

§  144.  This  doctrine  in  relation  to  the  right  of 
common  carriers  to  limit  their  liability  by  express 
contract,  may  now  be  considered  as  fully  established 
both  in  the  English  and  American  courts.2  They 
have  the  right  to  diminish  their  liability  by  contract, 
but  not  to  restrict  it  by  their  own  will,  in  the  absence 
of  contract.  The  same  reasoning  which  supports  this 
doctrine  as  to  railroad  companies  and  other  common 
carriers  will  apply  with  equal  force  to  telegraph 
companies.  The  responsibility  of  the  company  is 
imposed  for  the  protection  of  the  owner  of  the  goods, 
or  the  sender  of  the  message.  The  safe  transmission 

1  Court  of  Common  Pleas,  N.Y.  1  Daly,  547.  In  Breese  &  Mumford  ». 
The  United  States  Telegraph  Co.  45  Barb.  2 74,  it  is  said  that  "  even  if  the 
defendant  is  held  to  be  an  ordinary  common  carrier,  it  had  the  right  to 
limit  its  liability  by  express  contract."  See  also  Shields  v.  The  Washing- 
ton Teleg.  Co.  9  Western  Law  Journal,  283. 

*  The  contrary  doctrine  has  been  held  in  Georgia.  Fish  v.  Chapman, 
2  Ga.  349,  which  follows  some  of  the  earlier  New  York  cases  that  have 
now  been  entirely  overruled.  And  see,  also,  Michigan  Central  11. R.  Co. 
v.  Ward,  2  Mich.  R.  538,  overruled  in  Michigan  Cen.  R.R.  Co.  v.  Hale, 
6  Mich.  R.  243. 
[172] 


CHAP.  III.]  TO    MESSAGES.  §  146 

of  the  particular  message  is  a  matter  in  which  the 
public  have  no  concern. 

§  145.  If,  therefore,  the  responsibility  is  imposed  for 
the  benefit  of  the  person  contracting  with  the  com- 
pany, he  has  the  legal  right  to  renounce  the  benefit 
which  the  law  gives  him.  The  parties  have  the 
capacity  to  contract,  and  such  contracts  will  be 
governed  by  the  same  principles  as  in  case  of  con- 
tracts between  individuals.  The  owner  of  the  goods, 
or  the  sender  of  the  message,  may  insist  upon  the 
liabilities  of  the  company  which  the  law  imposes ; 
if  he  chooses,  by  express  contract,  to  fix  a  less  liability 
upon  the  company,  it  is  his  own  voluntary  act ;  and 
there  is  no  public  policy  that  will  prevent  this.  But 
how  far  public  policy  will  permit  a  contract  between 
the  parties,  by  which  the  company  exonerates  itself 
from  negligence,  is  not  everywhere  well  settled. 

§  146.  The  courts  of  England  recognize  this  right, 
and  some  cases  seem  to  go  the  length  of  holding  that 
a  common  carrier  may  stipulate  for  exemption  from 
all  liability,  even  for  gross  negligence  or  misfeasance.1 
But  in  the  case  of  McAndrew  v.  The  Electric 
Telegraph  Co.,  it  is  held  that  the  company  could  not 


1  In  Leeson  v.  Holt,  1  Starkie,  186,  the  Court  seem  to  have  gone  very 
far  in  this  direction.  Lord  Ellenborough,  C.J.,  said,  "  In  the  present 
case  they  [the  carriers]  seem  to  have  excluded  all  responsibility  what- 
soever, so  that,  under  the  terms  of  the  present  notice,  if  a  servant  of  the 
carrier  had,  in  the  most  wilful  and  wanton  manner,  destroyed  the  furniture 
intrusted  to  him,  the  principal  would  not  have  been  liable."  He  adds, 
however,  that  "  the  question  in  these  cases  always  is,  whether  the  delivery 
was  upon  special  contract."  See  also  Hinton  ».  Dibbin,  2  Q.B.  646.  But 
this  last  case  was  decided  upon  the  construction  of  the  English  statutes 
upon  the  subject  of  carriers. 

[173] 


§  147  CONTRACTS    IN    RELATION  [PART  II. 

stipulate  for  exemption  from  the  consequences  of  gross 
negligence.1 

The  current  of  American  authoiities  is  against  the 
right  of  the  carrier  to  stipulate  for  exemption  from 
the  consequences  of  his  malfeasance,  misfeasance,  or 
negligence.2 

§  147.  This  doctrine  has  been  fully  recognized  in 
case  of  telegraph  companies.  In  the  case  of  De 
Rutte  v.  N.Y.,  Alb.,  &  Buf.  Teleg.  Co.,  the  Court, 
in  recognizing  their  right  to  limit  the  responsibility 
imposed  upon  them  by  law,  say,  that  such  limitation 
of  responsibility,  although  brought  home  to  the 
sender  of  the  message,  will  not  excuse  the  company 
for  negligence.  And  so  also  in  Birney  v.  N.Y.  & 
Wash.  Prin.  Telegraph  Co.,3  although  the  company 
had  a  rule  that  they  would  not  be  responsible  for 

1  Many  of  the  earlier  and  best-considered  English  cases  hold  the  carrier 
liable  for  ordinary  negligence,  and  that  he  cannot  exempt  himself  there- 
from. Wyld  v.  Pickford,  8  M.  &  W.  443 ;  Batson  v.  Donovan,  4  Barn. 
&  Aid.  21;  Bodenham  v.  Bennett,  4  Price  R.  31.  But  the  later  cases 
have  departed  very  considerably  from  this  rule,  and  go  to  the  extent  of 
holding  that  the  carrier  may  relieve  himself  from  liability  for  gross  neg- 
ligence. See  Austin  v.  The  Manchester  S.  &  L.  Railway,  1 1  Eng.  Law 
&  Eq.  R.  506  ;  Chippendale  ».  The  Lan.  &  Yorkshire  Railway,  7  Eng. 
Law  &  Eq.  395  ;  York,  Newcastle,  &  Bernwick  Railway  v.  Crisp,  25  Eng. 
Law  &.  Eq.  396. 

1  Story  on  Bailments,  §  545  a,  note  5,  §  570 ;  2  Greenleaf  on  Evidence, 
§  215  ;  Reno  v.  Hogan,  12  B.  Monroe,  63;  Camden  &  Amboy  R.It.  Co. 
v.  Baladauf,  16  Pa.  St.  67.  See  opinion  of  Mr.  Justice  Nelson  in  N.J. 
Steam  Navigation  Co.  v.  Merchants'  Bank,  that  the  company  cannot  stipu- 
late against  "  wilful  misconduct,  gross  negligence,  or  want  of  ordinary 
care."  Clark  v.  Faxton,  21  Wend.  153  ;  Dorr  ».  N.J.  Steam  Navigation 
Co.  4  Sand.  136;  Laing  v.  Calder,  8  Penn.  479  ;  Penn.  Railway  v.  Mc- 
Closkey,  23  Penn.  532  ;  Graham  &  Co.  v.  Davis,  4  Ohio  St.  362 ;  Baldwin 
v.  Collins,  9  Rob.  (La.),  468.  But  see  Lee  v.  Marsh,  receiver,  43  Barb. 
(N.Y.)  R.  102,  contra. 

8  18  Md.  R.  341. 
[174] 


CHAP.  III.]  TO    MESSAGES.  §  148 

unrepeated  messages,  and  this  rule  was  brought  home 
to  the  knowledge  of  the  sender  of  the  message,  who 
nevertheless  delivered  it  to  be  sent  as  an  unrepeated 
message,  and  the  company  made  no  effort  to  put 
the  message  on  its  transit,  yet  they  were  held 
liable. 

§  148.  We  have  seen  that  the  company  may  make 
rules  and  regulations  in  reference  to  the  transmission 
of  messages,  so  that  they  be  reasonable.1  A  general 
notice  of  such  rules  and  regulations  has  the  effect  of 
restricting  the  general  liability  of  the  company,  if 
brought  home  to  the  knowledge  of  the  party  con- 
tracting with  the  company,  in  cases  where  his  assent 
is  shown  ;  but  it  has  been  held  that  it  is  sufficient  to 
show  that  the  notice  is  brought  to  the  knowledge  of 
the  sender  of  the  message,  and  his  assent  thereto  will 
be  presumed.2  Whether  or  not  such  notice  was  so 


1  Ante,  part  2,  c.  2,  §  104,  et  seq. 

s  Moses  v.  Boston  &  Maine  R.R.  4  Foster,  71 ;  Baldwin  v.  Collins,  9 
Rob.  (La.)  R.  468 ;  Sanford  ».  Housatonic  R.R.  Co.  11  Cush.  155  ;  Brown 
v.  Eastern  R.R.  Co.  11  Cush.  97. 

But  Chief- Justice  Redfield,  in  his  treatise  on  Railways,  says  (p.  266), 
"  The  mere  fact  of  such  a  notice,  restricting  the  carrier's  liability,  being 
brought  home  to  the  knowledge  of  the  owner  of  the  goods,  before  or  at 
the  time  of  depositing  them  with  the  carrier,  is  no  certain  ground  of  infer- 
ring whether  the  carrier  consented  to  recede  from  his  notice  and  per- 
form the  duty  which  the  law  imposes  on  him,  or  the  owner  of  the  goods 
consented  to  waive  some  portion  of  his  legal  rights.  Perhaps,  upon  gen- 
eral grounds  of  inference,  it  might  be  regarded  as  more  logical,  and  more 
reasonable,  to  infer  that  the  carrier  receded  from  an  illegal  pretension, 
than  the  owner  of  the  goods  from  a  legal  one.  At  all  events,  to  exonerate 
the  carrier  from  the  general  liability,  he  must  show,  at  the  least,  it  would 
seem,  that  the  owner  assented  to  the  demands  of  the  notice,  or  acquiesced 
in  it  by  making  no  remonstrance.  It  will  be  found  that  the  decided  cases 
mainly  coincide  with  these  general  propositions."  See  vol.  2,  §  159,  ed. 
1867. 

[175J 


§  149  CONTRACTS    IN    RELATION  [PART  II. 

made  public,  or  otherwise  brought  to  his  attention  as 
to  fix  knowledge  upon  him,  would  be  a  question  of 
fact  for  the  jury.1 

§  149.  Telegraph  companies  furnish  printed  forms 
to  their  customers,  convenient  in  point  of  size  for 
writing  and  for  preservation ;  but  they  answer  the 
further  purpose  of  calling  attention  to  the  best  mode 
of  avoiding  error  and  delay,  and  are  worded  with  a 
view  to  becoming  the  contract  when  the  blank  shall 
be  used.  Eepetition  of  the  message  upon  the  wires 
back  to  the  sender  is,  in  point  of  fact,  the  mode  of 
ascertaining  the  correctness  of  the  first  transmission ; 
but  these  forms  usually  make  it  applicable  to  delivery 
also.  They  provide  that  half  the  first  charge  will  be 
required  for  having  the  message  returned  and  com- 
pared with  the  first  draft,  and  that,  unless  thus 
repeated,  the  company  will  not  be  responsible  for 
errors  or  delays  in  transmission  or  delivery,  for  more 
than  the  amount  paid  for  single  transmission,  or  other 
sum  mentioned.  If  special  indemnity  be  desired,  a 
separate  contract  may  be  made,  either  upon  rates  pro- 
posed, as  in  the  McAndrew  case,  or  upon  a  special 
agreement,  as  in  Carew's  case. 

It  has  been  held,  that  such  printed  blanks,  before 
being  filled  up,  are  general  propositions  to  the  public 
of  the  terms  and  conditions  upon  which  the  message 
will  be  transmitted,  and  that  by  writing  a  message 
under  such  heading,  signing  and  delivering  it  for 
transmission,  the  sender  accepts  the  proposition,  and 
the  company  is  bound  only  in  the  mode  and  according 
to  the  terms  stated  in  the  heading ;  and,  further,  that, 

1  Brown  v.  Eastern  R.R.  Co.  11  Cush.  97. 
[176] 


CHAP.  III.]  TO    MESSAGES.  §  149 

if  it  should  appear  that  the  sender  had  not  in  fact 
read  the  heading,  but  had  acted  himself  and  allowed 
the  company  to  act  under  it,  an  acceptance  may  be 
presumed  ; 1  and  that  his  omitting  to  read  it  would 
be  gross  negligence  which  he  would  not  be  allowed 
to  set  up,  to  establish  a  liability  against  the  com- 
pany which  it  had  expressly  stipulated  against; 
the  principle  of  estoppel  in  pais  would  prevent 
him  from  so  doing.  The  case  is  given  in  full  in  the 
note.2 


1  See  McMillan  v.  The  M.  S.  &  N.J.  R.R.  Co.  16  Mich.  R.  79. 

The  late  case  of  Ellis  v.  Am.  Teleg.  Co.  13  Allen,  226,  cites  a  rail- 
road case,  Jndson  v.  Western  R.R.  6  Allen,  486,  as  establishing  the 
doctrine,  that  a  common  carrier  "  may  regulate  the  extent  of  his  liability 
by  a  notice,  brought  home  to  his  employer,  and  assented  to  by  him, 
either  directly  or  by  implication,"  and  applies  it  to  the  telegraph 
company. 

In  15  Mich.  525,  W.  U.  Teleg.  Co.  v.  Carew,  reference  is  made  to 
the  case  of  McMillan  v.  M.  S.  &  N.J.  R.R.  Co.,  above  cited,  as  contain- 
ing the  views  of  the  court,  as  to  the  power  of  a  carrier  in  exempting  itself 
from  liability,  by  contract ;  they  then  say,  persons  sending  messages  should 
acquaint  themselves  with  the  regulations,  and  "  the  natural  inference  would 
seem  to  be,  either  that  he  already  knew  and  assented  to  such  rules,  regu- 
lations, or  usages,  or  that  he  intended  to  assent  to  them,  whatever  they 
might  be."  But  Campbell,  J ,  in  referring  to  this  point  in  McMillan's 
case,  said,  "  I  agree  with  my  brother  Cooley,  that  the  liability  of  a  com- 
mon carrier  can  only  be  varied  by  contract,  and  that  no  notice,  unless  it 
has  been  so  given  as  to  authorize  the  implication  of  a  contract,  can  avail." 
This  is  much  more  accurate  in  language,  and  consonant  with  reason  and 
authority. 

*  Breese  &  Mumford  v.  The  United  States  Teleg.  Co.  45  Barb.  (N.Y.) 
274. 

"  On  the  16th  March,  1865,  George  W.  Cuyler,  President  of  the  First 
National  Bank  of  Palmyra,  acting  for  the  plaintifls,  presented  to  the  de- 
fendant, a  corporation  duly  incorporated,  and  engaged  in  the  business 
of  transmitting  messages  and  despatches  by  electric  telegraph  for  hire 
over  its  line  of  wires,  extending  from  the  city  of  New  York  northwardly 
and  westwardly,  at  its  office  in  Palmyra,  a  certain  despatch,  written  upon 
the  ordinary  blank  of  defendant,  and  requested  the  same  to  be  transmitted 

12  [177] 


§  150  CONTRACTS    IN    RELATION  [PART  II. 

§  150.  A  notice  by  the  company,  restricting  the 
liability  which  the  law  imposes  upon  it,  brought  home 
to  the  knowledge  of  the  sender  of  the  message,  and 
assented  to  by  him,  is  but  another  mode  of  stating 
and  showing  the  existence  of  an  express  contract 
between  the  parties ;  for  the  notice  is  but  a  propo- 
sition made  by  the  company ;  and  the  sender  of  the 

to  the  parties  to  whom  the  same  was  addressed,  and  paid  for  such  transmis- 
sion the  fee  charged  by  the  defendant,  but  did  not  pay  for  nor  request  to 
have  the  same  repeated.  The  blank  and  message  thereon  written  were 
as  follows :  — 

" '  No. .  To  all  points  in  the  United  States  and  British  Provinces. 

REG'D. 

u<  United  States  Telegraph  Company.  E.  C.  Fellows,  Gen'l.  Supt. 
Syracuse,  N.Y. ;  W.  H.  Kirtland,  Asst.  Supt.  Rochester,  N.Y.';  N.  Ran- 
dall, President,  Syracuse,  N.Y. ;  S.  C.  Hay,  Secretary,  N.Y. 

" '  In  order  to  guard  against  errors  or  delays  in  the  transmission  or  deliv- 
ery of  messages,  every  message  of  importance  ought  to  be  repeated,  by 
being  sent  back  from  the  station  to  which  it  is  directed,  to  the  station  from 
which  it  is  sent,  and  compared  with  the  original  message.  Half  the  tariff 
price  will  be  charged  for  thus  repeating  and  comparing.  And  it  is  hereby 
agreed  between  the  signer  or  signers  of  the  message  and  this  company,  that 
this  company  shall  not  be  held  responsible  for  errors  or  delays  in  the  trans- 
mission or  delivery  of  this  message,  if  repeated,  beyond  the  amount  of 
fifty  dollars,  unless  a  special  agreement  for  insurance  be  made,  and  paid 
for  at  the  time  of  sending  the  message,  and  the  amount  of  risk  specified, 
in  the  agreement ;  and  that  in  case  this  message  is  not  repeated,  this  com- 
pany shall  not  be  held  responsible  for  any  error  or  delay  in  the  transmis- 
sion or  delivery  of  the  same,  beyond  the  amount  paid  for  transmission, 
unless  specially  insured,  and  the  amount  of  risk  paid  for  and  specified  in 
the  agreement  at  the  time ;  nor  shall  this  company  be  held  liable  for  errors 
in  ciphers,  or  obscure  messages;  nor  for  any  error  or  neglect  by  any  other 
company,  over  whose  lines  this  message  must  be  sent,  to  reach  its  destina- 
tion ;  and  this  company  is  hereby  made  the  agent  of  the  signer  of  this  mes- 
sage to  forward  it  over  the  lines  of  other  companies  when  necessary.  No 
agent  or  employe  is  authorized  or  allowed  to  vary  the  terms  of  this  agree- 
ment, or  make  any  other  or  verbal  agreement,  and  no  one  but  the  Super- 
intendent is  authorized  to  make  a  special  agreement  for  insurance.  This 
[178] 


CHAP.  III.]  TO    MESSAGES.  §  150 

message,  by  acting  under  it  without  objection,  or  by 
manifesting   bis   assent  thereto  in  any  other  mode, 

agreement  shall  apply  through  the  whole  course  of  this  message  on  all  lines 
by  which  it  may  be  transmitted. 

" ' Palmyra,  March  16th,  1865. 

" '  Send  the  following  message  subject  to  the  above  conditions  and 
agreement : 

"'To  CAMMANN  &  Co.,  No.  56,  WALL  STKEET,  NEW  YORK. 
" '  Buy  us  Seven  (700)  Hundred  Dollars  in  Gold. 

"'GEO.    W.    CUYLER,   Ft. 

"  '  No.  2.     Please  write  your  address  under  your  signature.' 

"  Cuyler  had  on  hand  at  his  office  a  lot  of  these  blanks,  which  the  defend- 
ant had  left  there  to  secure  business,  and  took  the  blank  in  question  from 
amongst  the  others  and  wrote  the  despatch  upon  it.  But  neither  Cuyler 
nor  the  plaintiffs  had  ever  read  the  printed  portion  of  the  blanks.  The 
message  thus  delivered  was  duly  transmitted  from  the  office  at  Palmyra,  as 
written ;  but,  by  some  error  of  some  of  defendants'  operators  working  be- 
tween Palmyra  and  New  York,  the  precise  cause  of  which  is  unknown,  it 
was  received  in  New  York,  and  sent  and  delivered  to  Cammann  &  Co.  in 
the  following  form :  '  To  Cammann  &  Co.,  No.  56  Wall  Street,  New 
York.  Buy  us  seven  thousand  dollars  in  gold.  GEO.  W.  CUYLER,  Pt.' 
In  consequence  of  the  receipt  of  this  message,  Cammann  &  Co.  imme- 
diately, on  the  same  day,  purchased,  on  account  of  the  plaintiffs,  $7,000 
in  gold  coin,  and  paid  for  the  same  the  then  market  price,  $1.71  in  legal- 
tender  notes  for  each  dollar  in  gold.  As  soon  as  possible,  after  the  dis- 
covery of  the  error,  the  plaintiffs  notified  the  defendant  of  the  same,  and 
of  the  purchase,  and  tendered  to  the  defendant  the  gold  so  purchased  at 
the  price  which  had  been  paid,  and  gave  notice  that  unless  defendant 
elected  to  accept  said  gold  at  the  price  paid,  the  same  would  be  sold  in 
the  public  market  for  the  highest  price,  and  defendant  held  liable  for  the 
loss.  Defendant  refused  the  tender,  and  the  gold  was  accordingly  sold 
at  the  best  market  price,  which  was  $1.51}  in  legal-tender  notes,  by  which 
a  loss  was  sustained  of  $1,244.25.  The  plaintiffs  seek  to  recover  the 
amount  of  this  loss  with  interest. 

"  By  the  Court,  Johnson,  J. :  'It  must  be  held,  I  think,  that  the  printed 
heading  to  the  paper  on  which  the  message  delivered  to  the  defendant  for 
transmission  was  written,  was,  under  the  circumstances,  something  more 
than  a  mere  notice  to  the  plaintiff's  assignor,  by  whom  such  message  was 
written,  signed,  and  delivered. 

" '  Before  the  message  was  written  under  it,  and  signed,  and  delivered  to 

[179] 


§  151  CONTRACTS    IN    RELATION  [PART   II. 

accepts  the  proposition,  and  it  thereby  possesses  all 
the  ingredients  of  an  express  contract. 

§  151.  Very    different    from   these    is   that  other 

the  defendant,  it  was  a  general  proposition  to  all  persons  desiring  to  send 
messages  by  the  defendant's  peculiar  means  of  transmission  or  conveyance, 
of  the  terms  and  conditions  upon  which  such  messages  would  be  sent,  and 
the  defendant  became  liable  in  case  of  error  or  accident  in  the  transmis- 
sion or  conveyance.  By  writing  the  message  under  it,  and  signing  and 
delivering  the  same  for  transmission,  the  party  accepted  the  proposition, 
and  it  became  an  agreement,  binding  upon  the  defendant,  only  according 
to  the  terms  and  conditions  specified  in  its  proposition.  That  such  is  the 
legal  effect  of  the  arrangement  under  which  the  message  in  this  case  was 
received  for  transmission  by  the  defendant,  seems  to  me  extremely  clear. 

" '  Under  the  date  of  the  message,  and  the  name  of  the  place  from  which 
it  was  sent,  was  printed  in  large,  clear  type,  "  Send  the  following  message, 
subject  to  the  above  conditions  and  agreement." 

" '  Directly  under  this  the  message  was  written  and  signed  by  the  plain- 
tiff's assignor.  There  is  no  pretence  that  the  "  conditions  and  agreement" 
there  referred  to  were  not  plainly  printed,  or  that  there  was  the  least  diffi- 
culty in  reading  and  understanding  the  terms  proposed  by  the  defendant. 
There  they  stood,  in  jclear,  plain  print.  First,  a  general  statement,  tlrat 
"  in  order  to  guard  against  errors  or  delays  in  the  transmission  or  delivery 
of  messages,  every  message  of  importance  ought  to  be  repeated,  by  being 
sent  back  from  the  station  to  which  it  is  directed,  to  the  station  from  which 
it  is  sent,  and  compared  with  the  original  message."  Following  this  is  the 
tariff  or  rate  charged  for  such  repetition  and  comparison,  as  follows: 
"  Half  the  tariff  price  will  be  charged  for  thus  repeating  and  comparing." 
Then  follow  the  terms  and  conditions,  in  this  language :  "  And  it  is  hereby 
agreed  between  the  signer  or  signers  of  this  message  and  this  company, 
that  this  company  shall  not  be  held  responsible  for  errors  or  delays  in 
the  transmission  or  delivery  of  this  message,  if  repeated,  beyond  the  amount 
of  fifty  dollars,  unless  a  special  agreement  for  insurance  be  made  and  paid 
for  at  the  time  of  sending  the  message,  and  the  amount  of  risk  specified  in 
this  agreement ;  and  that  in  case  this  message  is  not  repeated,  this  com- 
pany shall  not  be  held  responsible  for  any  error  or  delay  in  the  transmis- 
sion or  delivery  of  the  same,  beyond  the  amount  paid  for  transmission,  un- 
less specially  insured,  and  the  amount  of  risk  paid  for  and  specified  in  this 
agreement  at  the  time."  Here  is  no  ambiguity  whatever,  but,  on  the  con- 
trary, the  language  is  well  chosen,  and  the  meaning  and  import  perfectly 
clear  and  obvious  to  the  most  indifferent  or  careless  reader.  The  price  far 
transmission  only  was  paid.  There  was  no  request  to  have  the  message 
repeated,  and  nothing  was  paid  or  offered  therefor,  and  no  insurance. 
[180] 


CHAP.  III.]  TO    MESSAGES.  §  151 

class  of  rules,  which  involve  no  element  of  contract, 
but  are  intended  to  facilitate  business.  We  consider 
them  now  in  the  light  of  accesses  in  making  and 


The  defendant  is  therefore  exempt  from  all  liability  for  the  mistake  or  error 
complained  of,  by  the  express  terms  of  the  agreement. 

" '  It  is  stated,  in  the  case  made,  that  neither  the  person  who  signed  the 
message,  nor  the  plaintiffs,  ever  read  the  printed  "  conditions  and  agree- 
ment "  thus  subscribed.  But  it  does  not  follow  from  this,  by  any  means, 
that  they  are  not  bound  by  the  conditions.  They  might  and  should  have 
been  read.  It  was  very  gross  carelessness  and  negligence  not  to  read 
them  before  signing  and  delivering  the  message.  No  notice  was  given  to 
the  agents  of  the  defendant,  that  the  conditions  and  agreement,  to  which 
the  author  and  signer  of  the  message  had  in  terms  agreed  the  same  should 
be  subject,  he  had  in  fact  neglected  to  read,  and  inform  himself  as  to  their 
import.  The  presumption,  in  the  absence  of  any  notice,  was,  that  he  had 
read  and  understood  the  proposition  he  had  thus  accepted ;  and  the  de- 
fendant's agents  had  the  right  to  take  it  for  granted  that  he  had,  and  will 
be  presumed  to  have  done  so,  and  to  have  sent  in  good  faith  the  message 
upon  the  terms  thus  proposed  and  apparently  accepted.  The  plaintiffs 
should  not  now  be  permitted  to  allege  that  their  assignor  either  wilfully 
shut  his  eyes  and  refused  to  see  what  was  so  plainly  before  him,  or  that  he 
negligently  omitted  to  use  them  for  that  purpose.  To  allow  them  now  to 
do  this,  would  operate  as  a  fraud  upon  the  defendant.  It  would  enable 
one  party,  through  his  own  gross  negligence  and  inattention,  to  create  a 
liability  against  another  in  his  own  favor,  where  none  was  bargained  for, 
or  would  have  been,  and  which  was  expressly  stipulated  against.  The 
principle  of  estoppel  in  pais  applies  in  full  force  against  the  plaintiffs'  claim. 
[If  the  matter  was  printed  in  a  language  unknown  to  the  sender,  the  prin- 
ciple would  be  different.  Orange  Co.  Bank  v.  Brown,  9  Wend.  85.] 
Their  assignor,  by  his  conduct,  led  the  agents  of  the  defendant  to  suppose 
and  believe,  that  he  had  agreed  to  the  defendant's  propositions,  and  they 
cannot  now  gainsay  the  apparent  agreement. 

"  '  In  Lewis  v.  The  Great  Western  R.R.  Co.  5  H.  &  N.  867,  which  was  a 
case  where  the  person,  delivering  goods  to  a  carrier,  filled  up  and  signed 
a  receiving  note  under  a  printed  head  of  "  Conditions,"  under  which  were 
certain  printed  conditions,  and  which  the  party  afterwards,  in  an  action  for 
the  loss  of  the  goods,  claimed  not  to  have  read,  Baron  Bramwell  said, 
"  It  would  be  absurd  to  say  that  this  document,  which  is  partly  in  writing 
•and  partly  in  print,  and  which  was  filled  up,  signed,  and  made  sensible  by 
the  plaintiff,  was  not  binding  upon  him.  A  person  who  signs  a  paper  like 
this,  must  know  that  he  signs  it  for  some  purpose,  and,  when  he  gives  it 

[181J 


§  151  CONTRACTS    IN    RELATION  [PART  II. 

executing  contracts.  It  would  seem  upon  principle 
that  where  the  company  has  the  right  of  establish- 
ing regulations  for  the  proper  conducting  of  its 

to  the  company,  must  understand  that  it  is  to  regulate  the  rights  which  it 
explains." 

" '  I  cannot  refrain  from  observing  here,  that  the  business  in  which  the 
defendant  is  engaged,  of  transmitting  ideas  only,  from  one  point  to  another, 
by  means  of  electricity,  operating  upon  an  extended  and  insulated  wire, 
and  giving  them  expression  at  the  remote  point  of  delivery,  by  certain 
mechanical  sounds,  or  by  marks  or  signs,  indented,  which  represent 
words  or  single  letters  of  the  alphabet,  is  so  radically  and  essentially  differ- 
ent, not  only  in  its  nature  and  character,  but  in  all  its  methods  and  agen- 
cies, from  the  business  of  transporting  merchandise  and  material  substances 
from  place  to  place  by  common  carriers,  that  the  peculiar  and  stringent 
rules  by  which  the  latter  are  controlled  and  regulated  can  have  very  little 
just  and  proper  application  to  the  former ;  and  all  attempts  heretofore 
made  by  courts  to  subject  the  two  kinds  of  business  to  the  same  legal  rules 
and  liabilities,  will,  in  my  judgment,  sooner  or  later,  have  to  be  abandoned 
as  clumsy  and  indiscriminating  efforts  and  contrivances  to  assimilate  things 
which  have  no  natural  relation  or  affinity  whatever,  and  at  best  but  a 
loose  or  mere  fanciful  resemblance.  The  bearer  of  written  or  printed 
documents  and  messages,  from  one  to  another,  if  such  was  his  business  or  em- 
ployment, might  very  properly  be  called  and  held  a  common  carrier,  while 
it  would  obviously  be  little  short  of  an  absurdity  to  give  that  designation  or 
character  to  the  bearer  of  mere  verbal  messages,  delivered  to  him  by  mere 
signs  or  speech,  to  be  communicated  in  like  manner.  The  former  would  have 
something  which  is,  or  might  be  the  subject  of  property,  capable  of  being 
lost,  stolen,  and  wrongfully  appropriated ;  while  the  latter  would  have  noth- 
ing in  the  nature  of  property  which  could  be  converted  or  destroyed,  or  form 
the  subject  of  larceny,  or  of  tortious  caption  and  appropriation,  even  by 
the  "  king's  enemies."  But  even  if  the  defendant  is  held  to  be  an  ordinary 
common  carrier,  it  had  the  right  to  limit  its  liability  by  express  contract, 
as  is  now  well  settled.  (Bissell  v.  New  York  Central  Railroad  Company, 
25  N.  Y.  442  ;  Dorr  ».  N.J.  Steam  Navigation  Company,  1  Kern.  485.) 

"'In  Me  Andrew  v.  The  Electric  Telegraph  Company  (17  Com.  B.  3  ; 
84  E.  C.L.  R.),  it  was  held  that  a  mere  regulation  of  the  corporation,  similar 
to  the  one  herein  question,  was  a  reasonable  regulation  under  the  Act  16 
&  1 7  Viet.,  and  shielded  the  corporation  from  liability  for  the  mistake  of 
sending  the  message  to  Southampton  instead  of  Hull ;  and  so  in  Camp  v. 
The  Western  Union  Telegraph  Company  (1  Metcalfe,  Ky.  164),  it  was 
held  that  a  printed  notice  similar  to  the  conditions  here,  not  in  the  form  of 
an  agreement,  was  a  reasonable  regulation  in  behalf  of  the  company,  and 
[182] 


CHAP.  III.]  TO    MESSAGES.  §  151 

business,  if  reasonable,  there  is  a  corresponding  obli- 
gation on  the  public  to  conform  to  them  ;  otherwise 
the  company  may  decline  the  service.  Now  that 
saving  time  is  a  leading  object  in  the  use  of  the 
telegraph,  it  is  incumbent  on  the  company  to  give 
sufficient  publicity  to  these  regulations,  in  order  that 
those  wishing  to  use  it  may  do  so  intelligently  and 

binding  upon  the  person  delivering  the  message  to  be  transmitted.  Our 
statute  providing  "  for  the  incorporation  and  regulation  of  telegraph  com- 
panies "  (Sess.  Laws  of  1848,  c.  265,  §  1 1)  makes  it  the  duty  of  the  owner 
of  any  telegraph  line  doing  business  within  this  State,  to  receive  despatches, 
and  on  payment  of  their  usual  charges  for  transmitting  despatches,  "  as 
established  by  the  rules  and  regulations  of  such  telegraph  line,  to  transmit 
the  same  with  impartiality  and  good  faith,"  under  a  certain  prescribed 
penalty.  Thus  the  statute,  it  will  be  seen,  recognizes  the  right  of  the 
owners  of  these  lines  of  communication,  to  "  establish  rules  and  regula- 
tions "  for  the  transmission  of  communications,  delivered  to  be  forwarded 
in  nearly  the  same  terms  as  the  Act  of  16  &  17  Viet  The  legislature 
obviously  never  intended  that  these  corporations  or  persons  engaged  in  this 
novel,  interesting,  and  extraordinary  business  should  be  placed  upon  the 
same  footing  in  respect  to  liability  with  ordinary  carriers  of  goods. 

" '  There  is  no  question  here  of  gross  negligence,  against,  which  the  de- 
fendant could  not,  as  carrier  even,  shield  himself  by  contract.  The  case 
states  that  the  message  was  duly  transmitted  from  the  office  at  Palmyra, 
as  written  and  delivered,  "  but  by  error  of  some  of  defendant's  operators, 
working  between  Palmyra  and  New  York,  the  precise  cause  of  which  is 
unknown,"  it  was  received  in  New  York,  and  delivered  as  an  order  to  pur- 
chase 87,000  in  gold,  instead  of  $700,  according  to  the  message  delivered 
and  duly  transmitted  at  Palmyra.  In  view  of  the  nature  of  this  business, 
and  of  the  peculiarly  delicate  and  subtile  agencies  and  forces  employed  in 
carrying  it  on,  it  is  impossible  for  the  Court  to  say,  from  this  statement,  that 
the  error  complained  of  was  the  result  of  any  negligence  or  inattention 
whatever  on  the  part  of  the  agents  employed  by  the  defendant.  For 
aught  we  can  see,  it  may  have  been  produced  by  causes  over  which  no 
person  had  any  control.  And  these  considerations  show  most  forcibly  the 
importance  and  necessity  of  allowing  those  carrying  on  this  business  the 
right  to  make  rules  and  regulations  and  contracts  limiting  and  control- 
ling to  a  reasonable  extent  the  grounds  and  measure  of  their  liability. 

"  '  For  the  foregoing  reasons  I  am  of  opinion  that  the  facts  stated  in  the 
case  made,  do  not  entitle  the  plaintiffs  to  any  recovery. 

"  '  The  defendant  must,  therefore,  have  judgment  for  its  costs.' " 

[183] 


§  154  CONTRACTS    IN    RELATION  [PART  II. 

without  delay ;  or,  on  the  other  hand,  that  they  may 
decline,  if  the  modes  of  transacting  business  do  not 
suit  their  convenience. 

§  152.  This  necessity  of  knowledge  on  the  part  of' 
the  public  is  not,  however,  upon  the  principle  of  a 
contract  between  the  company  and  the  sender,  where 
his  assent  to  the  terms  of  the  regulations  is  presumed 
from  his  knowledge,  and  that,  therefore,  if  by  their 
terms  they  impose  a  restricted  liability,  he  has  yielded 
to  them  by  becoming  a  party  to  the  contract ;  but  it 
is  upon  the  principle  of  a  legal  right  in  the  company 
to  make  reasonable  rules  and  regulations,  and  the 
corresponding  legal  duty  to  make  due  publication  of 
them,  so  that  all  persons  may  act  advisedly  in  their 
transactions  with  them. 

§  153.  The  principle  we  are  now  contending  for 
is  not  that  the  company  has  the  right  to  restrict  the 
responsibilities  which  it  has  assumed  by  undertaking 
a  public  employment,  except  to  the  extent  that  may 
be  necessary  to  enable  it  fairly  and  faithfully  to  dis- 
charge this  public  duty,  by  throwing  such  checks  and 
safeguards  around  its  operations  as  the  peculiar  char- 
acter of  its  undertaking  may  make  necessary  for  its 
own  protection,  and  for  the  more  perfect  accommoda- 
tion of  the  public. 

§  154.  There  is  -a  variety  of  rules  that  may  be 
lawfully  enforced  by  the  company,  which  do  not 
affect  the  question  of  ultimate  responsibility.  For 
instance,  it  may  be  required,  as  already  stated,  that 
messages  shall  be  in  writing ;  that  they  be  legible  ; 
that  they  be  paid  for  in  advance ;  and  that  no  one 
shall  enter  the  private  rooms  and  read  or  hear  de- 

[184] 


CHAP.  III.]  TO    MESSAGES.  §   155 

spatches,  or  interrupt  operators.  These  and  other 
rules,  proper  as  mere  business  regulations,  depend 
upon  the  will  of  the  company. 

In  the  matter  of  compensation  the  company  is 
bound  by  law  to  make  the  tariff  uniform  and  equal 
upon  all  employers,  at  the  same  date.  A  certain 
amount  may  be  charged  for  sending  a  message  once  ; 
and  for  a  repetition  a  certain  additional  rate  may  be 
exacted;  and,  aside  from  these  restrictions,  these 
regulations  also  emanate  from  the  company,  and  do 
not  derive  their  force  from  any  contract  with  the 
employer. 

§  155.  We  have  said  that  we  think  it  is  the  duty 
of  the  company  to  apprise  all  persons  of  such  rules 
and  regulations,  or  at  least  so  to  publish  them,  that 
all  persons  may  have  a  fair  opportunity  of  knowing 
them ;  but  a  contrary  opinion  seems  to  be  expressed 
hi  the  case  of  Birney  v.  New  York  &  Washington 
Telegraph  Co.1  Here  the  company  had  this  oft-men- 
tioned rule  as  to  repeated  messages ;  the  message  was 
delivered  for  transmission  as  an  unrepeated  message, 
and  the  company  made  no  effort  to  transmit  it, 
although  they  had  accepted  it  for  transmission;  and 
they  were  held  liable ;  but  on  the  point  we  are  now 
considering,  the  Court  say,  "  Though  the  default  and 
neglect  of  which  the  plaintiff  complains  may  be 
embraced  within  the  rules  and  regulations  exempting 
the  appellee  from  liability,  it  is  not  necessary  that 
these  rules  and  regulations  shall  be  brought  home  to 

1  18  Md.  R.  341  ;  and  so  in  the  case  of  Gildersleeve  v.  The  United 
States  Teleg.  Co.,  not  yet  reported.  See  ante,  §  118,  decided  by  the 
same  court,  following  18  Md. 

[185] 


§  157  CONTRACTS    IN    RELATION  [PART   II. 

the  knowledge  of  the  appellant.  In  our  opinion 
the  converse  of  the  proposition  is  true, —  the  appellant 
was  bound  in  law  to  know  them." 

We  should  say  the  sender  was  bound  in  law  to 
know  that  the  company  had  the  right  to  make  reason- 
able rules  and  regulations,  but  not  to  know  what  they 
in  fact  were. 

§  156.  The  interests  of  the  public,  however,  prompt 
them  to  diligence  in  all  matters  of  this  kind ;  and  it 
may  even  be  true,  now  that  these  minor  business  regu- 
lations are  understood  by  all  who  are  likely  to  be 
affected  by  them.  The  most  important  aspect  in 
which  the  question  of  notice  presents  itself,  is  where 
the  attempt  is  made  to  use  a  rule  or  regulation  as  an 
element  in  construing  contracts. 

§  157.  It  should  be  constantly  borne  in  mind, 
that  the  company  owes  a  duty  to  the  public,  and  it 
must  send  the  message,  even  though  the  sender  should 
refuse  to  contract  under  the  rules  and  regulations.  It 
is  therefore  plain  that  these  rules  are  offered  as  terms 
of  a  contract,  and  assent,  express  or  implied,  must  in 
some  way  be  shown.  If  the  sender  refuse  to  write 
his  message  upon  the  printed  blank,  because  of  its 
terms,  that  implies  knowledge,  and  raises  the  question 
as  to  their  reasonableness.  Still  the  message  must  be 
sent ;  and  afterwards,  in  case  of  litigation,  the  courts 
would  give  the  company  the  benefit  of  their  rules, 
notwithstanding  their  rejection  as  terms  of  the  con- 
tract in  the  first  instance ;  thus  affording  full  mid 
complete  protection  against  captious  and  unreason- 
able objections,  and  at  the  same  time  holding  them  to 
a  prompt  discharge  of  a  public  duty. 

[186J 


CHAP.  III.]  TO    MESSAGES.  §  160 

If,  on  the  other  hand,  the  message  should  be  offered 
and  sent,  without  any  thing  having  been  said  or  done 
in  reference  to  regulations,  printed  or  otherwise,  it 
could  not  be  properly  held,  in  consequent  litigation, 
that  the  company  would  be  entitled,  as  a  matter  of 
law,  to  have  the  benefit  and  protection  of  these  rules 
and  regulations,  by  reason  of  their  antecedent  exist- 
ence and  inherent  force.  If  so,  they  would  have 
imparted  to  them  the  quality  of  the  law. of  the  land. 

§  158.  In  De  Rutte  v.  1ST.  Y.,  Alb.,  &  Buf.  Teleg. 
Co.,  the  Court,  in  speaking  of  the  rule  in  reference  to 
repeated  messages,  say,  — 

"  It  may  be  that  in  the  course  of  time  this  practice 
will  become  so  universally  established  among  telegraph 
companies,  that  all  doing  business  with  them  will  be 
presumed  to  have  a  knowledge  of  it,  and  that  the 
omission  to  secure  a  repetition  of  the  message  will  be 
at  the  risk  or  peril  of  the  party  to  whom  it  is  sent." 

The  Court  probably  meant  that  the  omission  to 
repeat  would  exonerate  the  company,  and  devolve  the 
risk  upon  the  parties  interested  in  the  particular 
message. 

§  159.  The  liability  of  the  company  commences 
when  the  message  is  delivered  to  the  agent  of  the 
company  authorized  to  receive  it,  for  transmission ; 
and  in  order  to  bind  the  company  it  must  be  delivered 
to  such  agent.1 

§  160.  It  is  not  necessary  that  the  sender  of  the 
message  should  be  actually  present  in  the  office  of  the 
company  when  the  message  is  delivered  for  transmis- 

1  Blanchard  »..  Isaacs,  3  Barb.  388 ;  Elkins  ».  The  Boston  &  Maine 
R.R.  Co.  3  Foster,  275. 

[187] 


§   161  CONTRACTS    IN    RELATION  [PART  II. 

sion ;  it  may  be  written  out,  signed,  and  delivered  by 
an  agent.  Nor  is  it  necessary  that  the  message  should 
be  in  writing,  in  the  absence  of  a  rule  of  the  company 
requiring  it ;  the  contract  would  be  just  as  effectual 
and  binding  between  the  parties  as  if  it  were  in  writ- 
ing, the  difficulty  in  such  cases  being  only  as  to  the 
proof;  whether  or  not  a  message  transmitted  in  this 
way,  would  be  considered  as  being  in  writing,  under 
the  Statute  of  Frauds,  will  be  considered  hereafter. 

§  161.  As  we  have  seen,  it  is  sometimes  the  case, 
that  the  terms  and  conditions  upon  which  the  message 
is  sent,  are  stated  in  printed  headings,  and  when  the 
message  is  written  thereon,  according  to  some  of  the 
decisions,1  it  becomes  an  express  contract;  or,  if  the 
terms  and  conditions  of  the  transmission  are  expressly 
agreed  upon  before  or  at  the  time  the  sender  delivers 
the  message  to  the  company,  in  any  other  manner,  it 
is  an  express  contract ;  and  would  be  governed  by  the 
same  principles  of  law  and  rules  of  construction  appli- 
cable to  other  simple  contracts,  which  are  express 
between  individuals. 

In  such  cases  the  written  or  verbal  agreement  of 
the  parties  must  be  looked  to,  in  order  to  determine 
their  respective  rights  and  obligations ;  the  character 
of  the  message  sent,  whether  unrepeated,  repeated,  or 
insured,  if  the  company  have  the  usual  conditions 
imposed  as  to  such  messages ;  the  terms  and  condi- 
tions of  the  transmission,  etc. 


1  McMillan  ».  The  M.  S.  &  N.J.  R.R.  Co.  16  Mich.  R.,  where  it  is 
said,  "  The  condition  must  be  presumed  to  have  been  assented  to  by  the 
party  for  sufficient  consideration ;  and  proof  that  he  did  not  read  it  is  im- 
material." 
[188] 


CHAP.  III.]  TO    MESSAGES.  §   164 

§  162.  But  in  many  cases  there  is  no  express  con- 
tract between  the  parties,  and  the  message  is  simply 
written  out  and  delivered  to  the  agent  of  the  company, 
and  the  charges  are  paid,  and  the  sender  does  nothing 
more  in  relation  to  the  message.  Here  the  contract 
between  the  parties  is  an  implied  contract. 

In  determining  the  rights  and  obligations  of  the 
parties  under  this  implied  contract,  the  reasonable 
rules  and  regulations  of  the  company,  if  the  sender 
had  a  fair  opportunity  of  knowing  them,  would  be 
incorporated  into  the  contract,  and  the  sender  would 
be  bound  by  them. 

§  163.  Where  the  message  was  not  prepaid,  and 
no  express  agreement  in  reference  to  it,  whether  or 
not  credit  would  thereby  be  given  to  the  sender,  or 
whether  it  would  be  understood  that  the  company 
must  look  to  the  person  to  whom  the  message  was 
addressed  for  its  charges,  would  depend  upon  the 
custom  of  telegraph  companies  in  such  cases  ;  but  in 
the  absence  of  any  custom  in  relation  thereto,  the 
presumption  would  be  that  credit  was  given  to  the 
sender,  as  the  labor  was  performed  at  his  request. 

§  164.  The  sender  would  have  the  right  to  demand 
a  receipt  from  the  company,  we  think,  for  the  mes- 
sage and  also  for  the  charges  paid.  This  he  may  do 
for  his  own  protection,  as  otherwise  he  might  be  un- 
able to  prove  that  he  delivered  the  message  for  trans- 
mission, and  he  should  not  be  compelled  to  depend 
upon  the  possible  recollection  of  the  company's  agent 
that  such  a  message  was  delivered  and  the  charges 
paid.  The  case  seems  to  be  analogous  to  the  sending 
of  a  package  by  express.  If  the  express  company 

[189] 


§   165  CONTRACTS    IN    RELATION  [PART  II. 

refused  to  give  a  receipt,  and  the  party  was  unwilling 
to  send  it  without  such  receipt,  we  should  say  it  would 
be  liable  in  damages  for  failing  to  receive  and  carry 
the  package ;  and  it  would  be  no  defence  to  the  com- 
pany that  it  was  ready  and  willing  to  carry  the  pack- 
age, provided  no  receipt  were  demanded  therefor. 

§  165.  When  the  message  is  delivered  to  the  com- 
pany, there  is  an  implied  promise  on  its  part  to 
transmit  it  correctly.  It  must  be  sent  exactly  as  it  is 
written :  the  operator  has  no  right  to  change  or  alter 
in  any  respect  the  message  so  as  to  make  it  mean 
what  he  understands  it  to  mean ;  even,  if  without 
such  alteration  it  be  wholly  unintelligible  to  him. 
He  has  no  right  to  insist  on  understanding  its  mean- 
ing ;  it  may  be  wholly  meaningless  to  him,  and  yet 
intelligible  to  the  person  to  whom  it  is  addressed.  If 
it  be  changed  by  the  operator  to  mean  what  he  under- 
stands the  sender  to  intend,  and  loss  thereby  accrue, 
the  company  is  responsible  in  damages. 

As,  where  the  message  delivered  for  transmission 
read,  "  Send  me,  for  Wednesday  evening,  two  hand 
bouquets,  very  handsome,  one  of  five  and  one  of  ten 
dollars  ;  "  and  the  operator  reading  the  word  "  hand  " 
as  hund,  added  the  letters  "  red,"  so  that  the  message 
transmitted  read  "  two  hundred  bouquets," —  the  com- 
pany was  held  liable  for  the  loss  sustained.1 

1  New  York  &  Washington  Printing  Telegraph  Co.  v.  Dryburg, 
35  Pa.  St  R.  298.  The  Court  say,  "  The  telegraph  company  did  not 
send  Le  Roy's  message  as  he  wrote  it.  If  written  as  the  company's  agent 
read  it,  the  word  hand  was  written  hund,  and  if  the  company  had  sent  the 
word  hund  to  Dryburg,  they  would  have  been  in  no  fault  Their  agent, 
however,  assumed  that  hundred  was  meant,  and  accordingly  added  the  three 
letters,  r-e-d,  which  did  all  the  mischief!  We  do  not  understand  that 
[190] 


CHAP.  III.]  TO    MESSAGES.  §  166 

§  166.  The  company  is  under  no  obligation  to  ac- 
cept messages  in  cipher  of  arbitrary  characters,  or  in 
a  foreign  alphabet;  but,  if  designedly  accepted,  they 
must  be  rendered  or  reproduced  according  to  con- 
tract. If  the  message  be  in  the  proper  alphabet,  and 
yet  illegible,  the  operator  could  not  know  what  words 
or  letters  to  transmit,  and  he  should  therefore  decline 
it.  These  preliminary  points  must  be  settled  at  the 
outset,  for,  when  once  received  in  due  course  of  busi- 
ness, the  obligation  is  perfect.  When  for  want  of 
this  diligence  a  message  has  been  accepted,  which  in 
point  of  fact  the  agent  cannot  read,  he  should  relieve 
the  company  by  a  diligent  attempt  to  ascertain  from 
the  sender  or  otherwise  the  letters  or  words  intended. 
If,  however,  it  had  been  sent  or  deposited  in  such 
way  as  to  preclude  a  preliminary  inspection,  it  might 
safely  be  sent  according  to  the  best  judgment  of  the 
•agent,  and  the  sender  would  be  held  to  have  assumed 
the  risk.  But  if  a  message  be  plainly  written,  and 
error  occur,  the  company  is  liable.1 


there  was  any  dot  after  the  letters  hund  to  indicate  a  contraction,  so  that 
the  agent's  inference  that  hundred  was  meant,  was  entirely  gratuitous. 

"  The  wrong,  then,  of  which  the  plaintiff  complains,  consists  in  sending 
him  a  different  message  from  that  which  they  had  contracted  with  Le  Roy 
to  send.  That  it  was  a  wrong  is  as  certain  as  that  it  was  their  duty  to 
transmit  the  message  for  which  they  were  paid.  .  .  .  One  of  the  plainest 
of  their  obligations  is  to  transmit  the  very  message  prescribed.  To  follow 
copy,  an  imperative  law  of  the  printing  office,  is  equally  applicable  to  the 
telegraph  office." 

1  In  Bowen  &  McNamee  v.  The  Lake  Erie  Telegraph  Co.  1  American 
Law  Reg.  685,  which  was  an  action  brought  by  the  plaintiffs  to  recover 
damages  sustained  because  of  a  mistake  in  the  transmission  of  the  following 
message  sent  over  the  line  of  the  defendants :  — 

"  Send  one  handsome  eight  dollar,  blue  and  orange,  and  twenty-four 

[191] 


§   167  CONTRACTS    IN    RELATION  [PART  II. 

§  167.  In  N.Y.  &  Washington  Printing  Telegraph 
Co.  v.  Dryburg,  it  is  said  that  it  is  plainly  the  duty 
of  the  telegraph  operator  to  send  what  is  written. 

red  and  green,  three  twenty-fives,  Bay  State.  Fill  former  orders  with 
best  high  colors  you  can. 

(Signed)  "  BIDWELL  &  Co., 

"  Adrian,  Michigan. 
"  To  BOWEX  &  McNAMEE,  New  York." 

The  proof  was,  that  the  despatch,  when  it  reached  New  York,  read 
"  one  hundred,"  instead  of  "  one  handsome,"  and  that  the  mistake  com- 
plained of  occurred  in  some  office  upon  the  defendants'  line.  That  the 
plaintiff  after  having  had  the  despatch  repeated  (  how  far  back  did  not 
appear),  and  receiving  it  a  second  time,  "  one  hundred,"  shipped  to  Bid- 
well  &  Co.  "  one  hundred  eight-dollar  blue  and  orange  Bay  State " 
shawls ;  and  the  shawls  were  returned,  and  reached  New  York  after  the 
shawl  season  had  closed ;  by  reason  of  which  they  were  depreciated  in 
value. 

The  plaintiff  claimed  the  right  to  recover  charges  for  freight  and  the 
depreciation  in  value. 

The  defendants  denied  the  commission  of  the  error,  and  claimed  that 
the  despatch  was  so  obscure  as  to  be  inappreciable,  and  not,  therefore,  the 
subject-matter  of  damages,  even  if  the  error  had  been  committed ;  that 
telegraph  companies  were  not  held  to  the  same  accountability  as  common 
carriers  and  that  such  error  as  the  one  complained  of  might  occur  without 
gross  negligence. 

Starkweather,  J.,  charged,  in  substance,  that "  telegraph  companies  hold- 
ing themselves  out  to  transmit  despatches  correctly,  are  under  obligations  so 
to  do,  unless  prevented  by  causes  over  which  they  have  no  control ;  that  the 
defendant  was  bound  to  send  the  message  in  question  correctly ;  and  that 
if  it  failed  in  this  duty,  whereby  damage  had  occurred  to  the  plaintiffs,  the 
plaintiffs  must  recover.  That  if  the  message  was  originally  so  obscure  as 
to  be  inappreciable,  that  then  the  error  complained  of  could  not  have  in- 
creased its  obscurity,  and  the  plaintiff  could  not  recover ;  but  if  it  was  suf- 
ficiently plain  to  be  understood  by  Bowen  &  McNamee,  the  plaintiffs  in 
the  action,  the  merchants  to  whom  it  was  addressed,  though  not  intelligible 
to  others,  that  it  was  appreciable ;  and  if  changed,  to  the  injury  of  the  plain- 
tiffs, such  a  change  was  a  proper  subject  of  damages." 

So  in  the  case   of  Rittenhouse  ».  Independent  Line  of  Telegraph, 

Jurist  Digest  for  March  10,  1866,  p.  197  (S.C.  1  U.C.,  L.J.,  N.S.  247.— 

C.P.  New  York),  1  Daly,  474,  it  was^held  that  a  telegraph  company  was 

not  excused  from  liability  for  an  erroneous  transmission  of  a  message  by 

[192] 


CHAP.  III.]  TO    MESSAGES.  §   167 

It  is  no  affair  of  his  that  the  message  would  have 
been  unintelligible.  Messages  are  often  sent  along 
the  wire  that  are  unintelligible  to  the  operator,  and 

the  fact  that  its  meaning  was  unintelligible  to  the  company,  so  long  as  the 
words  were  plain. 

But  the  correctness  of  this  view  is  denied  in  the  case  of  Shields  v.  The 
Washington  &  New  Orleans  Telegraph  Co.  (1  Livingston's  Law  Magazine, 
69;  4  American  Law  Journ.  N.S.  311),  where  the  plaintiff  sued  for  $164 
damages,  arising  from  the  incorrect  transmission  of  a  telegraph  despatch, 
in  which  the  word  sixty-six  was  substituted,  in  the  price  of  oats,  for  fifty- 
six,  the  correct  number. 

The  company  refunded  the  cost  of  the  despatch,  but  resisted  any  lia- 
bility incurred  by  the  mistake  of  the  operator. 

The  Court  said,  "  What  is  the  test  of  appreciation  of  a  despatch  like 
that  which  the  plaintiff  received  in  this  instance  from  his  correspondent  ? 
The  despatch  read  or  said, '  oats  fifty-six,  bran  one  ten,  corn  seventy-three, 
hay  twenty-five.' 

"  The  person  who  sent  the  despatch  made  no  explanation  to  the  opera- 
tor, and  without  explanation  how  could  the  operator  know  whether  the 
numbers  in  question  referred  to  dollars  and  cents,  or  to  bushels  and  bales  ? 
Again,  how  could  the  operator  know  whether  the  said  despatch  conveyed 
an  order  to  purchase,  or  an  account  of  sales  ?  And  if  he  was  bound  to 
infer  the  former,  what  information  did  the  despatch  convey  to  his  mind  of 
the  extent  of  the  orders  ? 

"  The  meaning  of  the  despatch  was  a  secret  to  all  but  the  parties  cor- 
responding. 

"  Under  these  circumstances  the  value  of  the  message  was  inappreciable, 
and  the  telegraph  company  had  no  means  of  knowing  the  extent  of  the 
responsibility  which  ought  to  be  involved  in  its  correct  transmission,  upon 
the  principles  contended  for  by  the  counsel  for  the  plaintiff."  The  judg- 
ment was  for  the  plaintiff  to  the  amount  of  three  dollars  and  fifty  cents,  — 
the  cost  of  the  message,  —  and  costs  of  the  court. 

We  have  been  unable  to  discover  that  there  was  any  appeal  in  this  case. 

We  submit  that  the  view  here  taken  is  not  the  correct  one. 

Why  has  the  operator  any  right  to  know  what  the  message  refers  to  ? 
Or  why  the  necessity  of  drawing  inferences  or  conjectures  in  reference 
thereto  ?  How  will  such  knowledge  aid  him  in  the  discharge  of  his  ob- 
ligation to  send  the  message  correctly  ?  What  difference  does  it  make,  in 
this  respect,  whether  the  message  "  conveyed  an  order  to  purchase,  or  an 
account  of  sales  "  ?  Would  such  knowledge  aid  him  in  the  correct  trans- 
mission of  the  message  ? 

As  we  have  seen,  the  company  had  the  right  to  avail  themselves  of  all 

13  [193J 


§   167  CONTRACTS    IN    RELATION  [PART  II. 

when  he  presumes  to  conjecture  the  writer's  meaning, 
and  to  add  words  which  were  confessedly  not  there, 
he  makes  the  company  responsible. 

facilities  and  safeguards  which  the  peculiar  agency  they  employ  may  make 
necessary,  to  protect  themselves  from  the  danger  of  error  or  delay  in  the 
transmission  of  messages;  and  they  may  make  rules  and  regulations  in  ref- 
erence thereto,  and  may  require  the  persons  who  engage  their  services  to 
conform  to  them,  and  to  pay  such  increased  charges  as  may  be  reasonable, 
in  order  to  compensate  for  the  additional  trouble  and  expense  incident  to 
the  adoption  of  such  safeguards.  And  if  an  explanation  by  the  sender  to 
the  operator,  of  the  meaning  of  the  message,  would  contribute  to  the  safety 
or  the  accuracy  of  its  transmission,  there  would  be  an  obligation  resting  on 
him  to  make  such  explanation.  Now  when  we  come  to  consider  the  degree 
of  responsibility  of  telegraph  companies  in  the  transmission  of  messages, 
and  whether  they  are  the  insurers  thereof,  as  carriers  are  of  goods,  the 
question  as  to  their  ignorance  of  the  value  of  the  message  may  be  a  very 
proper  subject  of  inquiry,  in  the  same  way  as  all  other  questions  connected' 
with  the  infirmities  of  this  peculiar  business  may  be;  as,  for  example,  tin: 
impossibility  of  accompanying  the  message  on  its  transit,  and  the  like  ;  for 
in  many  instances  it  is  impossible  for  the  sender  himself  to  communicate  the 
value  of  the  message,  or  of  the  matters  connected  therewith ;  or  by  an 
explanation  of  its  meaning  to  acquaint  the  operator  with  its  value,  or  the 
consequence  of  mistake  or  delay.  And  in  looking  to  these  considerations 
as  establishing  the  inherent  infirmity  of  this  mode  of  conveyance,  and  as 
manifesting  its  want  of  analogy  to  common  carriers,  the  view  taken  in 
the  above  case  may  be  pertinent. 

And  so,  the  question  may  be  properly  considered  in  reference  to  dam- 
ages, in  the  rule  in  case  of  contracts,  which  authorizes  the  jury  to  look  to 
what  was  in  contemplation  of  the  parties  at  the  time  of  entering  into  the 
contract ;  we  mean,  in  this  connection,  where  it  is  sought  to  look  beyond 
tin;  damages  which  are  the  natural  and  proximate  result  of  the  failure,  to 
such  other  damages  as  may  appear  to  have  been  in  contemplation  of  the 
parties  from  their  knowledge  of  the  subject-matter  of  the  contract,  and  its 
incidents. 

But  as  to  the  liability  of  the  company  for  the  natural  and  proximate 
loss  arising  from  its  failure  to  comply  with  its  implied  contract  to  transmit 
the  message  correctly,  we  take  it,  the  understanding  of  the  meaning  of  the 
message  by  the  operator  has  nothing  to  do  with  it ;  and  that,  in  all  inqui- 
ries as  to  the  negligence  of  the  company  in  the  transmission  of  the  me- 
in  respect  of  either  accuracy  or  promptness,  such  considerations  are  out  of 
place.  The  duty  of  the  sender  of  the  package  or  other  goods,  to  inform 
the  express  company  or  railroad  company  of  its  character  and  value,  is 
[194] 


CHAP.  III.]  TO    MESSAGES.  §  168 

§  168.  There  is  also  an  implied  promise,  on  the 
part  of  the  company,  that  they  will  send  the  message 
immediately ;  that  is  to  say,  in  the  order  of  time,  in 
reference  to  other  messages,  in  which  it  is  received. 
We  have  already  considered  the  question  of  their 
right  to  show  preferences  in  this  respect,  and  to  send 
messages  of  a  certain  character  out  of  their  order.1 

in  order  that  the  carrier  may  take  the  additional  precautions  to  protect  it ; 
as,  for  example,  glass  or  money,  that  they  may  adopt  such  precautions  as 
will  protect  them  from  being  broken  or  stolen,  etc. ;  but  the  mode  of  the 
conveyance  of  the  message  is  the  same,  the  same  agencies  being  used, 
whatever  be  the  character  of  the  message,  whether  it  involve  a  penny,  or 
ten  thousand  pounds ;  and  the  knowledge  of  the  character  of  the  message 
has  nothing  to  do  with  its  protection :  it  is  transmitted  in  the  same  way  and 
by  the  same  process,  in  all  cases. 

In  the  case  of  railroad  companies  under  the  English  Carriers'  Act, 
which  requires  the  owner  of  the  goods  to  disclose  the  contents  of  the  article 
delivered  for  shipment,  it  has  been  held  that  the  exemption  of  the  carrier 
from  loss  under  the  act,  had  reference,  exclusively,  to  losses  such  as  by  the 
abstraction  of  a  stranger,  or  by  his  own  servants,  not  amounting  to  a  feloni- 
ous taking,  or  by  the  carrier  or  his  servants  losing  them  from  vehicles  in 
the  course  of  their  transit,  or  by  mislaying  them,  so  that  they  could  not  be 
found  at  the  time  they  ought  to  be  delivered ;  and  that  it  does  not  extend  to 
any  loss  of  any  description  whatever,  occasioned  to  the  owner,  by  the  non- 
delivery, or  by  the  delay  of  the  delivery  of  the  article,  occasioned  by  the 
neglect  of  the  carrier  or  his  servants.  Hearn  v.  London  &  S.W.  Railway, 
29  Eng.  Law  &  Eq.  R.  494. 

But  if  the  responsibility  of  the  telegraph  company  for  damages,  result- 
ing from  the  incorrect  transmission,  could  be  excused  from  the  fact  of  the 
character  and  importance  of  the  message  being  unknown  to  them,  this 
would  be  so  only  where  they  have  made  the  inquiries  of  the  sender,  to  in- 
form themselves  in  this  respect,  and  a  failure  or  refusal  by  the  sender,  to 
make  the  desired  explanation.  Orange  Co.  Bank  v.  Brown,  9  Wend.  85  ; 
Baldwin  v.  Collins,  9  Rob.  (La.)  468  ;  Allen  v.  Sewall,  2  Wend.  340. 
But  in  the  case  of  Shields  v.  Washington  &  New  Orleans  Telegraph  Co., 
it  is  not  assumed  in  the  opinion  that  any  effort  was  made  by  the  operator 
to  obtain  this  information  from  the  sender,  nor  the  necessity  of  such  dis- 
closure made  known  to  the  sender  in  any  other  manner. 

1  Ante,  part  2,  c.  2,  §  131.  In  all  such  cases  the  company  may  legally 
excuse  itself  for  delay,  by  showing  some  one  of  the  exceptional  cases  pro- 
vided by  statute.  West.  Union  Teleg.  Co.  v.  Ward,  23  Ind.  377. 

[195] 


§   172  CONTRACTS    IN    RELATION  [PART  II. 

Where  there  is  a  statutory  requirement  to  send 
messages  in  the  order  of  their  reception,  it  is  clear 
that  it  is  a  part  of  the  implied  contract  to  conform  to 
the  obligation  prescribed  by  the  statute.  But  in  the 
absence  of  such  provision,  there  is  an  implied  promise 
to  do  so. 

§  169.  Immediate  transmission  is  a  controlling  con- 
sideration in  communicating  through  this  medium. 
The  great  inducement  which  is  held  out  to  the 
public  in  the  transmission  of  messages  is  the  saving 
of  time ;  and  parties  seek  this  mode  of  communica- 
tion mainly  from  this  consideration. 

§  170.  So,  also,  that  they  will  transmit  the  message 
with  impartiality  and  in  good  faith ;  and  this  is  an 
implied  agreement  even  where  there  is  no  statute 
requiring  it.1 

§  171.  And  that  they  will  preserve  secrecy  in  refer- 
ence to  the  messages.  They  impliedly  stipulate  that 
the  agents  at  both  ends  of  the  line  will  do  so,  not 
only  up  to  the  time  of  delivery  of  the  message  to  the 
party  for  whom  it  is  intended,  but  for  all  time  there- 
after. The  relation  in  which  the  company,  through 
its  agents,  stand  to  the  parties,  is  one  of  confidence  ; 
and  they  impliedly  contract  that  this  confidence  will 
be  kept  inviolate.  This  obligation,  as  we  have  seen, 
is  imposed  by  statute,  in  England  and  the  American 
States. 

§  172.  There  is  no  obligation,  on  the  part  of  the 
company,  under  an  implied  contract  with  the  sender 
of  the  message,  to  ascertain  whether  the  message  has 

1  De  Rutte  v.  N.Y.,  Alb.,  &  Buf.  Elec.  Teleg.  Co.,  Court  of  Common 
Pleas,  N.Y.,  1866,  1  Daly,  547. 
[196J 


CHAP.  III.]  TO    MESSAGES.  §  174 

been  received  at  the  other  end  of  the  line,  and  de- 
livered to  the  proper  person,  and  to  convey  this  infor- 
mation to  the  sender.  The  contract  is  to  transmit 
and  deliver  the  message,  but  not  to  inform  the  sender 
of  the  fact.  If  it  has  not  been  done,  the  company  are 
liable  in  damages.  If  the  sender  desires  this  infor- 
mation, he  should  make  a  special  contract  with  the 
company. 

§  173.  If,  at  the  time  the  message  is  delivered  for 
transmission,  the  lines  are  down,  or  any  other  cause 
exists  which  would  prevent  its  immediate  transmis- 
sion, it  is  the  duty  of  the  company  to  inform  the 
sender ;  and  if  they  fail  to  do  so,  and  he  suffer  loss  by 
the  delay,  the  company  must  respond  in  damages. 
For,  if  the  company  accept  the  message  for  trans- 
mission, they  impliedly  contract  to  send  it  in  the  order 
of  time  of  its  reception,  and  that  they  are  prepared  to 
perform  this  service  ;  if  not  so  prepared,  the  sender 
should  know  it,  in  order  that  he  may  determine 
whether  to  engage  their  services  or  make  other  ar- 
rangements. They  cannot  disappoint  his  reasonable 
expectation  with  impunity. 

§  174.  The  correctness  of  this  view  has,  however, 
been  denied.  In  Stevenson  v.  The  Montreal  Tele- 
graph Co.,1  Burns,  J.,  says,  "It  may  be  asked,  was 
there  any  obligation  on  the  part  of  the  defendants  to 
inform  him,  on  the  23d  of  November,  that  their  line 
was  then,  at  the  receipt  of  the  message,  out  of  order  I 
I  do  not  see  that  any  such  obligation  existed.  The 
company  were  bound  only  to  transmit  as  soon  as  it 
could  be  done.  "We  know,  as  was  conceded  in  the 

1  16  Upper  Canada  R.  530. 

[197] 


§175  CONTRACTS    IN    RELATION  [PART  II. 

argument,  that  the  telegraph  is  a  means  of  communi- 
cation extremely  liable  to  be  deranged  or  affected  by 
atmospheric  influences ;  that  a  communication  may 
be  prevented  one  minute,  and  yet  be  fully  established 
the  next ;  that  interruptions  innumerable,  and  that 
cannot  be  accounted  for,  may  and  do  occur ;  and 
therefore  it  appears  to  me  it  is  not  reasonable  to 
expect  that  the  company  is  bound,  on  every  occasion 
when  a  person  desires  a  communication  to  be  for- 
warded, to  inform  him  that  possibly  the  message  may 
not  be  forwarded  for  some  minutes  or  some  hours. 
It  is  more  reasonable,  I  think,  to  cast  the  burthen  or 
responsibility  upon  the  person  presenting  the  mes- 
sages to  be  forwarded,  of  inquiring  whether  they  can 
be  sent  within  any  particular  time,  or  of  giving  infor- 
mation of  the  particular  importance  it  may  be  to  the 
party  that  the  message  should  be  forwarded  without 
delay." 

§  175.  A  distinction  must  be  taken  between  those 
momentary  interruptions,  or  those  caused  by  atmos- 
pheric influences  which  cannot  be  foreseen,,  and  which 
any  moment  may  be  removed,  and  those  cases  of  de- 
rangement of  the  wires  which  the  operator  must  know 
will  cause  unusual  delay ;  by  which  we  mean,  more 
than  may  be  ordinarily  expected  to  occur  by  transient 
interruptions.  And  where  the  interruptions  to  the 
proper  working  of  the  lines  are  such  as  to  cause  a 
suspension  of  the  power  to  transmit  for  some  hours, 
surely  it  is  incumbent  upon  the  company's  agent,  who 
has  knowledge  of  the  fact,  to  inform  the  person  pre- 
senting the  message,  and  who,  it  must  be  presumed, 
seeks  this  mode  of  communication,  with  the  well- 

[198] 


CHAP.  III.]  TO    MESSAGES.  §  177 

authorized  expectation  that  it  will  be  immediate ; 
and  we  cannot  perceive  by  what  principle  of  law  it 
is  incumbent  upon  the  sender  of  the  message  to  in- 
quire of  the  company  whether  they  are  at  that  time 
prepared  to  do  what  they  hold  themselves  out  to  the 
public  as  prepared  at  all  times  to  do.  If  circumstances 
or  influences  beyond  their  control  do,  for  a  time, 
render  them  incapable  of  fulfilling  this  public  prom- 
ise,—  and  which  would  certainly  excuse  them,  —  it 
is  clearly  their  duty  to  give  due  notice  of  the  fact  to 
those  who  seek  to  engage  their  services  ;  and  a  failure 
so  to  do  would  be  as  much  a  breach  of  the  contract 
on  the  part  of  the  company,  where  the  message  was 
received  by  them  for  transmission,  as  would  be  a 
neglect  to  deliver  the  message  at  the  other  end  of  the 
line,  after  it  had  been  forwarded.1 

§  176.  Where  the  entire  price  for  transmission  to 
the  place  of  destination  is  paid  to  the  company,  and 
there  are  intermediate,  independent  lines  with  which 
its  line  connects,  whether  the  company  thereby  im- 
pliedly  agree  to  be  responsible  for  the  correct  trans- 
mission of  the  message  over  all  these  lines,  or  only 
obligate  themselves  to  convey  the  message  over  their 
own  line,  and  safely  and  without  delay  to  deliver  it  for 
transmission  to  the  next  succeeding  line,  will  be  con- 
sidered in  the  chapter  on  Responsibility  for  Messages 
beyond  the  Company's  Line. 

§  177.  The  contracting  parties,  in  relation  to  the 

1  This  obligation  is  imposed  by  statute  in  Ohio  :  The  operator  must  in- 
form the  sender  that  the  line  is  out  of  order,  or  that  the  message  cannot, 
for  other  cause,  be  sent  in  its  regular  order,  and  for  failure,  the  company 
are  subject  to  a  penalty.  Act  May  1,  1852.  Appendix  CC. 

[199] 


§  177  CONTRACTS    IN    RELATION  [PART  II. 

transmission  of  the  message,  are  generally  the  person 
who  delivers  the  message  for  transmission,  and  the 
telegraph  company ;  and  usually  there  is  no  privity 
of  contract  between  the  company  and  the  person  to 
whom  the  message  is  sent.  But  this  is  not  always  so. 
The  contract  is  not  necessarily  with  the  party  whose 
name  is  signed  to  the  message.  A  case  presenting 
this  question  has  been  recently  decided  hi  the  State 
of  New  York.1 

Edward  De  Rutte  was  a  commission  merchant  in 
San  Francisco,  California.  He  had  a  brother,  Theoph- 
ilus  De  Rutte,  who  was  his  agent  and  correspondent 
at  Bordeaux,  in  France,  but  otherwise  had  no  interest 
in  Edward  De  Rutte's  business.  Theophilus  De  Rutte 
procured  from  Callarden  &  Labourdette,  bankers  in 
Bordeaux,  an  order  for  Edward  De  Rutte  to  purchase 
for  them  a  cargo  of  wheat  in  California,  at  the  ex- 
treme limit  of  twenty-two  francs  the  hectolitre,  which 
is  the  French  official  measure  for  grain.  Edward  De 
Rutte  was  to  purchase  and  ship  the  grain  to  them 
immediately ;  his  commissions  and  the  mode  of  his 
re-imbursement  to  be  the  same  as  in  a  previous  order 
received  by  him  from  another  Bordeaux  firm,  one  of 
the  partners  in  which  was  named  Monod.  Upon  re- 
ceiving this  order,  Theophilus  De  Rutte  prepared  a 
telegraphic  message  as  follows :  "  Edward  De  Rutte, 
San  Francisco.  Buy  for  Callarden  &  Labourdette, 
bankers,  a  shipload  of  five  to  six  hundred  tons  white 
wheat,  first  quality,  extreme  limit  twenty-two  francs 
the  hectolitre,  landed  at  Bordeaux ;  same  conditions 

1  De  Rutte  r.  N.Y.,  Alb.,  &  Buf.  Teleg.  Co.,  Court  Com.  Pleas,  N.Y., 
1866,  1  Daly,  547. 
[200] 


CHAP.  III.]  TO    MESSAGES.  §  178 

as  the  Monod  contract.  Th.  De  Rutte ; "  and  enclosed 
it  in  a  letter  to  a  merchant  at  New  York,  with  in- 
structions to  send  it  to  Edward  De  Rutte  in  the  quick- 
est manner,  and  to  debit  Edward  with  the  charges. 
The  merchant's  clerk  took  it  to  the  office  of  the  N.Y., 
Albany,  &  Buffalo  Telegraph  Company,  and  paid  for 
its  transmission  to  San  Francisco.  It  was  transmitted 
and  delivered,  and  several  mistakes  had  occurred,  the 
principal  one,  and  the  one  which  caused  the  loss, 
being  the  change  of  the  word  "  twenty-two  "  to  twen- 
ty-Jive  "  francs.  Edward  De  Rutte  sued  this  telegraph 
company  for  the  loss  occasioned  by  the  mistake.  One 
objection  of  the  defendants  was,  that  they  entered  into 
no  contract  with  the  plaintiff;  that  they  made  their 
contract  with  Theophilus  De  Rutte,  who  sent  the 
message,  acting  as  the  agent  of  Callarden  &  Labour- 
dette. 

§  178.  In  answering  this  objection  the  Court  say, 
"  It  does  not  necessarily  follow  that  the  contract  is 
made  with  the  person  by  whom,  or  in  whose  name,  a 
message  is  sent.  He  may  have  no  interest  in  the  sub- 
ject-matter of  the  message,  but  the  party  to  whom  it 
'  is  addressed  may  be  the  only  one  interested  in  its  cor- 
rect and  diligent  transmission ;  and  when  this  is  the 
case,  he  is  the  one,  in  reality,  with  whom  the  contract 
is  made.  The  business  of  transmitting  messages  by 
means  of  the  electric  telegraph  is,  like  that  of  common 
carriers,  in  the  nature  of  a  public  employment ;  for 
those  who  engage  in  it  do  not  undertake  to  transmit 
messages  only  for  particular  persons,  but  for  the  pub- 
lic generally.  They  hold  out  to  the  public  that  they 
are  ready  and  willing  to  transmit  intelligence  for  any 

[201] 


§   179  CONTRACTS    IN    RELATION  [PART  II. 

one,  upon  the  payment  of  their  charges ;  and,  when 
paid  for  sending  it,  it  forms  no  part  of  their  business 
to  inquire  who  is  interested  in,  or  who  is  to  be  bene- 
fited by,  the  intelligence  conveyed.  That  becomes 
material  only  where  there  has  been  a  delay  or  mistake 
in  the  transmission  of  a  message  which  has  been  pro- 
ductive of  injury  or  damage  to  the  person  by  whom, 
or  for  whom,  they  were  employed  ;  and  to  that  person 
they  are  responsible,  whether  he  was  the  one  who 
sent,  or  the  one  who  was  to  receive,  the  message. 

§  179.  "  It  is  somewhat  analogous  to  the  question 
which  arises,  when  goods  are  lost  upon  their  carriage, 
whether  the  action  against  the  carrier  is  to  be  brought 
by  the  consignor  or  the  consignee ;  and  the  general 
rule  upon  the  subject  is,  that  the  one  in  whom  the 
legal  right  to  the  property  is  vested,  is  the  one  to 
bring  the  action ;  and  if  that  is  the  consignee,  the 
consignor,  in  making  the  contract  with  the  carrier,  is 
regarded  as  having  acted  as  the  agent  of  the  other.1 
In  the  case  now  before  us  it  could  make  no  difference 
to  Callarden  &  Labourdette  whether  the  message  was 
correctly  transmitted  or  not,  as  wheat  could  not  be 
purchased  at  the  time  in  San  Francisco  at  the  price 
which  they  had  fixed,  and  the  plaintiff  was  the  only 
one  who  could  be,  and  who  was,  affected  injuriously 
by  the  mistake  in  the  message.  The  error  made  led 
him  to  the  purchase  of  over  $17,000  worth  of  wheat, 
upon  which  he  expected,  upon  the  assumption  that 
the  despatch  was  correct,  to  make  his  ordinary  commis- 

1  Citing  Danes  v.  Peck,  8  T.R.  330 ;  Griffith  v.  Ingledew,  6  S.  & 
Rawle,  429  ;  Freeman  v.  Birch,  1  Nev.  &  Manning,  420;  28  Com.  Law, 
326 ;  Dutton  v.  Solomonson,  3  Bos.  &  Pull.  584 ;    Everett  v.  Saltus,  15 
Wend.  474. 
[202] 


CHAP.  III.]  TO    MESSAGES.  §  180 

sions  ;  and  the  purchase  proving  unavailable  when  the 
mistake  was  discovered,  he  was  subjected  to  actual 
loss."  The  Court  say,  further,  that  for  certain  purposes 
Theophilus  De  Rutte  might  be  regarded  as  the  agent 
of  Callarden  &  Labourdette  in  giving  the  order,  but 
was  more  especially  the  agent  of  the  plaintiff  in  pro- 
curing it  for  him  ;  and  the  despatch  was  sent  on  plain- 
tiffs account  and  for  his  benefit.  "  It  was  an  order 
given  to  a  commission  merchant  to  purchase  grain  for 
a  foreign  house,  if  it  could  be  bought  at  a  certain 
price.  In  that  event  he  had  an  interest  to  the  extent 
of  his  commissions,  and  that  he  might  have  the  earliest 
intelligence  of  it,  and  secure,  if  possible,  any  advan- 
tage to  be  derived  from  it,  it  was,  by  the  direction  of 
his  agent  and  correspondent  at  Bordeaux,  and  at  his 
(the  plaintiff's)  expense,  sent  by  telegraph,  from  New 
York  to  San  Francisco;"  and  that  consequently  the 
contract  was  with  the  plaintiff,  and  the  action  for  the 
breach  was  properly  brought  by  him.1 

§  180.  Delivery  in  time  and  to  the  proper  person 
is  a  cardinal  feature  in  the  business  of  telegraphing. 
In  the  absence  of  stipulation,  the  company  is  bound 
to  due  care  and  diligence  from  the  very  nature  of  the 
undertaking.  Reasonable  regulations  for  this  part  'of 
the  service  may  of  course  be  adopted  by  the  company. 
We  do  not  find  that  any  case  has  been  adjudged  in 
England,  involving  the  duty  of  delivery,  and  only  one 
is  reported  in  America,2  in  which  the  company  was 

1  N.Y.  &  Wash.  Teleg.  Co.  v.  Dryburg,  35  Pa.  St.  K  298 ;  Eyre  ». 
Higbee,  15  How.  Pr.  R.  (N.Y.),  45. 

2  Bryant  v.  The  Am.  Teleg.  Co.  1  Daly,  575.     See  §  263,  where  the 
effect  of  a  notice  limiting  this  liability  is  discussed. 

[203] 


§  182  CONTRACTS    IN    RELATION  [PART  II. 

held  to  a  very  strict  performance  in  the  discharge  of 
this  implied  duty.  The  analogy  with  similar  engage- 
ments by  others  is  recognized  and  enforced. 

§  181.  The  first  question  to  be  considered  is,  what 
will  constitute  a  delivery  so  as  to  absolve  the  company 
from  all  further  obligations  under  the  contract. 

The  message  delivered  must  be  a  duplicate  of  the 
message  presented  by  the  sender  for  transmission. 

The  first  duty  of  the  company,  then,  after  the  mes- 
sage has  been  transmitted  over  the  wires,  is  to  have 
it  translated  from  the  telegraphic  symbols  into  the  ver- 
nacular language.  It  should  also  have  stated  upon 
the  paper  whereon  it  is  written,  the  name  of  the  place 
from  which  it  was  transmitted,  and  the  exact  time  of  day 
it  was  delivered  for  transmission.  This  should  always 
be  noted  on  the  message  transmitted,  by  the  first  or 
receiving  operator,  as  the  exact  time  of  the  day  in 
communications  of  this  character  is  often  important. 

§  182.  If  the  message  delivered  for  transmission 
is  in  some  language  other  than  the  English,  the  letters 
composing  each  word .  would  be  translated  into  the 
telegraphic  characters,  and  so  transmitted,  and  at  the 
office  of  destination  would  be  again  translated  back 
into  the  letters  composing  the  words,  and  so  formed 
into  the  words  of  the  foreign  language ;  and  to  dis- 
charge this  duty  it  would  be  unnecessary  that  either 
operator  should  understand  the  foreign  language ;  for, 
as  we  have  seen,  the  operator  is  not  required  to  un- 
derstand the  meaning  of  the  message.1 

1  But  let  us  suppose  the  message  delivered  for  transmission  was  in  a 
language  in  which  the  English  alphabet  was  not  used,  as,  for  example, 
Chinese  or  Arabic.    It  would  seem  that  the  sender  must  bring  a  translator 
[204] 


CHAP.  III.]  TO    MESSAGES.  §  185 

§  183.  A  case  might  occur  where  an  oral  delivery 
of  the  message  would  discharge  the  obligation  of  the 
company ;  as,  where  the  person  to  whom  it  was  ad- 
dressed was  in  the  office  at  the  time  of  its  reception, 
and  it  was  read  off  to  him  by  the  receiving  operator.1 

§  184.  There  is  a  primd  facie  obligation  resting 
upon  the  company  to  make  an  actual  personal  delivery 
to  the  person  to  whom  it  is  addressed ;  but  this  may 
be  controlled  by  a  well-established  usage  or  custom 
recognizing  a  different  mode  of  delivery  ;  and  it  would 
be  presumed,  in  such  case,  that  the  parties  contracted 
in  reference  to  such  custom.  It  is  so  held  in  case  of 
railroad  companies.2 

§  185.  When  the  address  of  the  person  to  whom 
the  message  is  to  be  delivered  is  not  given  with  such 
accuracy  and  particularity  as  to  enable  the  company's 
agent,  in  the  exercise  of  due  diligence,  to  find  him, 


with  him,  not  in  order  that  the  operator  may  understand  the  meaning  of 
the  message,  but  in  order  that  the  English  alphabet  may  be  used  in  form- 
ing the  words ;  and  for  the  reason  that  the  telegraph  symbols  adopted  are 
arranged  to  represent  the  letters  of  the  English  alphabet ;  and  no  arbitrary 
signs,  so  far  as  we  know,  have  been  adopted  to  represent  any  other 
alphabet. 

If  the  line  was  in  China  or  Arabia,  however,  we  should  think  the  oper- 
ators would  be  bound  to  know  the  language  of  the  country ;  and  the  com- 
pany must  have  an  agent  competent  to  translate  the  message  into  the 
English  alphabet,  in  order  to  transmit  it,  and  another  agent  at  the  office  of 
destination  to  render  it  again  into  the  Chinese  or  Arabic,  and  so  deliver  it. 

It  may  be  that  when  telegraph  lines  are  established  in  such  countries,  a 
new  class  of  symbols  will  be  adapted  to  the  alphabet  of  such  language. 

1  Durkee  v.  Vt.  Cent.  R.R.  Co.  29  Ver.  R.  127. 

2  Story  on  Bailments,  §  544;  Gibson  p.  Culver,  17  Wend.  305;   s.c. 
1  Denio,  45 ;  Farmers'  &  Mechanics'  Bank  v.  Champlain  Transportation 
Co.  16  Vt  52;  18  ib.  131  ;  Farmers'  &  Mechanics'  Bank  v.  Champlain 
Trust  Co.  23  Vt  186.     See  Pierce  on  American  Railroad  Law,  p.  434, 
where  these  authorities  are  cited. 

[205] 


§   187  CONTRACTS    IN    RELATION  [PART   II. 

personal  delivery  would  be  excused ;  and  the  com- 
pany would  have  sufficiently  discharged  their  duty,  by 
making  publication,  showing  that  a  message  was  in 
the  office  for  such  person.1 

§  186.  But  if  the  address  is  given  with  sufficient 
particularity  to  enable  the  agent  of  the  company  to 
find  the  party,  without  delay,  personal  delivery  should 
in  all  cases  be  made,  except  when  the  party  lives  in  a 
different  place  from  that  in  which  the  office  is  located  ; 
and  in  that  case  the  message  should  be  sent  to  him,  in 
a  sealed  envelope  by  mail ;  and  such,  we  believe,  is 
the  custom  of  telegraph  companies.  The  first  opera- 
tor should  make  the  additional  charge  for  postage 
when  the  message  is  delivered  for  transmission. 

When  personal  delivery  is  required,  we  should  think 
the  duty  would  be  discharged,  by  leaving  the  message, 
sealed  up  and  properly  addressed,  at  the  place  of 
business  or  residence  of  the  party. 

§  187.  Where  personal  delivery  cannot  be  made, 
because  the  address  of  the  party  is  not  known,  the 
manner  of  giving  notice  that  such  a  message  was  in 
the  office  would  depend  in  a  great  degree  upon  the 

1  It  is  customary  to  put  such  notices  in  the  daily  newspaper  in  cities. 
Personal  delivery  is  not  incumbent  on  railroad  companies;  the  reason  is, 
that  their  line  of  movement  and  points  of  termination  are  locally  fixed ; 
their  cars  are  confined  to  certain  tracks  ;  and  if  personal  delivery  was  re- 
quired of  them,  they  would  have  to  resort  to  another  and  distinct  spi-nrs 
of  transportation,  and  they  are  therefore  only  required  to  deliver  at  their 
stations.  Pierce  on  American  R.R.  Law,  p.  435;  Thomas  v.  Boston  & 
Providence  R.R.  Co.  10  Met.  472.  But  this  rule  as  to  railroad  companies, 
we  think,  could  not  be  properly  applied  to  telegraph  companies,  as  no 
such  reason  exists  for  excusing  personal  delivery  in  their  case.  Wherever 
the  address  of  the  party  to  whom  the  message  is  sent  is  sufficient!  v  t^ivcn 
to  enable  him  to  be  found,  there  personal  delivery  should  be  made,  if  he 
lives  in  the  same  locality  where  the  office  is  situated. 
[206] 


CHAP.  III.]  TO    MESSAGES.  §  187 

custom  of  the  company,  or  of  other  companies  in 
the  same  business.1  The  principle  which  governs  all 
such  questions  is,  Was  there  the  exercise  of  that  dili- 
gence which  the  law  requires  of  such  public  bailees,  in 
making  the  delivery  which  they  impliedly  promise  to 
do,  in  the  contract  for  transmission  of  the  message  ^ 
And  whether  there  was  the  exercise  of  such  diligence 
would  be  a  question  of  fact  for  the  jury,  to  be  deter- 
mined by  the  character  of  the  business,  the  situation 
of  the  parties,  and  the  local  customs  in  such  cases.2 

1  Blin  v.  Mayo,  10  Vt.  R.  56 ;  2  Kent  Com.  604. 

8  In  some  of  the  States,  provision  is  made  by  statute  for  the  delivery  of 
messages. 

In  Missouri  (Revised  Statutes,  c.  156,  sees.  7,  8,)  it  is  provided  that 
telegraph  companies  or  owners  shall  deliver  all  despatches  by  a  messenger, 
to  the  persons  to  whom  the  same  are  addressed,  or  to  their  agent,  on  pay- 
ment of  any  charge  due-for  the  same ;  provided,  such  person  or  agents  reside 
within  one  mile  of  the  telegraph  station,  or  within  the  city  or  town  in 
which  such  station  is. 

If  such  person  or  agents  do  not  reside  as  above  specified,  such  company 
or  owner  shall,  if  so  directed,  and  upon  payment  of  postage,  send  the 
same,  postage  prepaid,  by  post,  to  them,  to  such  post-office  as  may  be 
named.  Appendix  W. 

There  is  a  similar  provision  in  Indiana  (Revision  of  1860,  c.  179,  sec. 
3),  except  as  to  the  duty  of  sending  by  mail.  Appendix  L. 

In  Ohio  (Act  May  1,  1852),  it  is  required  that  despatches  shall  be  de- 
livered in  the  order  of  time  in  which  they  are  received  for  transmission, 
except  those  of  public  interest,  which  shall  have  preference  ;  and  it  is  fur- 
ther provided  that  no  telegraph  company  shall  be  required  to  deliver 
despatches  at  a  greater  distance  from  the  station  at  which  they  are  re- 
ceived than  the  published  regulations  of  such  company  require  the  com- 
pany to  deliver  them.  If  the  applicant  (?)  direct  the  despatch  to  be 
mailed  at  the  place  of  delivery,  and  offer  to  pay  the  necessary  postage 
thereon,  the  telegraph  company  shall  affix  the  necessary  postage-stamp, 
and  mail  the  desp  iteh  in  time  for  the  first  mail  that  shall  depart  for  the 
place  of  final  destination,  within  a  reasonable  time  after  such  despatch 
shall  have  been  received  at  the  office  of  delivery ;  and  for  omission  so  to 
do,  shall  be  liable  to  a  penalty.  Appendix  CC. 

In  Virginia  (General  Acts,  c.  149,  Act  May  26,  1852),  there  is  this  sin- 

[207] 


§   188  CONTRACTS    IN    RELATION  [PART  II. 

§  188.  Delivery  must  be  made  within  a  reasonable 
time. 

What  would  constitute  reasonable  time  would  be 
a  question  of  fact  for  the  jury,  depending  upon  the 
circumstances  of  each  particular  case.1 

In  the  ordinary  course  of  business  of  the  company, 
the  obligation  would  rest  upon  it  to  deliver  the  mes- 
sage in  the  order  of  time,  in  relation  to  other  messages, 
in  which  it  was  received  at  the  terminal  office.  We 
say  in  the  ordinary  course  of  the  business  of  the  com- 
pany ;  but  when  the  character  of  the  message  showed 
urgency,  or  in  any  manner  disclosed  the  importance  of 
immediate  delivery,  then  it  should  be  delivered  at 
once.2  Order  of  time  is  adopted  in  the  transmission 


gular  provision  in  reference  to  the  delivery  of  messages :  "  In  case  of  failure 
on  the  part  of  the  telegraph  company  to  deliver  a  despatch  within  such 
time  as  will  allow,  after  its  reception  at  the  first  office,  one  hour,  for  each 
one  hundred  miles  over  which  such- despatch  containing  fifty  words  or  less, 
may  be  transmitted,  and,  at  the  same  rate  for  messages,  the  owner  or  as- 
sociation which  received  the  charge  therefor  shall  refund  the  same,  on  de- 
mand of  the  party  from  whom  it  was  received." 

By  the  Act  of  February  21,  1866,  telegraph  companies  are  required  to 
deliver  despatches  promptly  to  the  persons  to  whom  they  are  addi . 
where  the  regulations  of  the  company  require  such  delivery,  or  to  forward 
them  promptly  as  directed  when  the  same  are  to  be  forwarded  ;  and  for 
every  failure  to  deliver  or  forward  a  despatch  as  promptly  as  practicable, 
the  company  shall  forfeit  one  hundred  dollars  to  the  person  sending  the 
despatch,  or  the  person  to  whom  it  is  addressed,  and  be  liable  in  damages 
to  the  party  aggrieved.  Appendix  KK. 

1  Nettles  v.  S.C.  R.R.  Co.  7  Rich.  190;  Broadwell  v.  Butler,  6  Mc- 
Lean R.  296. 

2  As  in  Western  Union  Telegraph  Co.  v.  "Ward,   23    Ind.  R.  377, 
where  the  message  delivered  for  transmission  was, "  Come  on  the  night 
train  without  fail;"  so,  in  Parks  v.  Alta  California  Teleg.  Co.  13  Cal. 
422, "  Due  $1,800;  attach  if  you  can  find  property;  will  send  note  by 
to-morrow's  stage,"  —  such  messages  should  be  delivered  with  the  utmost 
promptitude. 

[208] 


CHAP.  III.]  TO    MESSAGES.  §   191 

of  messages  because  of  the  limited  capacity  of  the 
wire ;  no  such  reason  could  necessitate  such  a  rule  in 
reference  to  the  delivery  of  the  message ;  and  we 
think  the  company  would  not  be  justified  in  adhering 
to  such  a  rule  in  a  case  where,  by  so  doing,  there 
might  be  injurious  delay. 

The  company  is  under  obligation  to  provide  itself 
with  a  sufficient  force  for  the  delivery  of  messages, 
according  to  the  exigencies  that  may  arise. 

§  189.  Where  preference  is  given  by  statute  to 
messages  of  a  certain  class,  the  priority  must  be 
given  to  the  delivery  of  them.  What  we  have  said 
in  reference  to  the  duty  of  the  company  to  give  pre- 
cedence to  the  transmission  of  messages  of  public 
and  general  interest,  and  in  furtherance  of  public  jus- 
tice and  the  public  weal,1  will  apply  equally  to  the 
delivery  of  such  messages. 

§  190.  The  reasons  and  principles  upon  which  the 
courts  have  rested  the  right  of  telegraph  companies 
to  enforce  their  regulations  in  reference  to  repeating 
messages  upon  the  wires  do  in  no  just  sense  apply  to 
delivery  after  transmission  has  been  effected.  Their 
reasonableness  as  applied  to  transmission  is  predi- 
cated upon  the  ground  that  the  repetition  may  be 
necessary  to  insure  accuracy,  and  to  enable  the  com- 
pany to  inform  themselves  as  to  whether  the  message 
has  in  fact  been  transmitted. 

§  191.  But,  we  submit,  this  reasoning  would  have 
no  application  to  the  delivery  of  the  message.  It 
could  make  no  difference,  in  considering  the  obli- 
gation as  to  its  delivery,  whether  the  message  had 

1  Ante,  part  2,  c.  2,  §  131,  et  seq. 

14  [209] 


§  193  CONTRACTS    IN    RELATION  [PART   II. 

been  sent  as  a  repeated  or  an  unrepeated  message. 
The  ability  of  the  company  to  make  the  prompt, 
correct,  and  safe  delivery  of  the  message  could  in 
no  degree  be  affected  by  this  consideration.  And  we 
doubt  not  that  this  regulation,  so  far  as  it  excuses 
the  company  as  to  the  delivery  of  the  message,  will 
be  held  unreasonable,  with  the  same  uniformity  that 
it  has  been  held  a  reasonable  regulation  in  respect 
to  its  transmission. 

§  192.  We  are  now  speaking  of  the  contract  im- 
plied by  law,  between  the  parties,  and  which  is  to 
be  construed  in  relation  to  such  reasonable  rules  and 
regulations  as  the  company  may  make ;  for,  of  course, 
in  cases  of  express  contract  that  they  are  not  to  be 
responsible  for  the  delivery  of  an  unrepeated  message, 
the  company,  under  the  American  authorities,  would 
only  be  liable  in  case  of  negligence  ;  and  by  the  Eng- 
lish authorities,  only  in  case  of  gross  negligence,  if  at 
all.  Indeed,  it  might  be  a  question,  under  the  Amer- 
ican authorities,  whether,  even  if  the  case  of  an  ex- 
press contract,  and  where  thereby  the  company  would 
only  be  liable  for  negligence  in  the  delivery,  the 
question  is  not  practically  the  same  as  in  cases  of 
implied  contracts ;  for,  in  determining  the  question 
of  negligence,  it  seems  to  be  settled  by  the  later  and 
best-considered  authorities,  that  negligence  exists  in 
all  cases  where  that  degree  of  diligence  has  not  been 
exercised,  which  the  nature  of  the  business,  in  each 
case,  would  require  for  the  accomplishment  of  the 
object. 

§  193.  Delivery  must  be  made  to  the  proper  per- 
son ;  and  the  company  would  be  liable  for  a  delivery 

[210] 


CHAP.  III.]  TO    MESSAGES.  §  193 

to  a  wrong  person,  although  it  was  made  by  the  com- 
pany in  good  faith,  believing  it  was  to  the  proper 


person.1 


1  It  was  so  held  in  case  of  a  delivery  by  a  railroad  company  to  a  per- 
son who  presented  an  order  for  the  goods,  purporting  to  be  signed  by  the 
consignee,  but  which  order  was  in  fact  forged.  Powell  v.  Myers,  26  Wend. 
591 ;  Angell  on  Carriers,  §§  321-326. 

This  requirement  has  been  pushed  to  its  utmost  limit,  in  a  very  recent 
case  decided  in  the  Supreme  Court  of  Indiana :  The  American  Express 
Company  v.  Calvin  Fletcher.  See  the  November  (1866)  number  of  The 
American  Law  Register,  p.  21.  The  opinion,  delivered  by  Frazier,  C.J., 
is  as  follows :  "  Fletcher  &  Sharp,  who  were  bankers  at  Indianapolis,  sued 
the  appellants  for  the  loss  of  a  package  of  paper  money,  which  the  latter 
undertook  to  convey  from  Indianapolis  to  Arcola,  Illinois,  and  to  deliver 
to  one  '  J.  O.  Riley  in  person.'  It  so  appears  by  the  receipt  given  for  the 
package,  a  copy  of  which  is  made  a  part  of  the  complaint.  The  complaint 
is  in  two  paragraphs  in  the  usual  form,  as  against  a  common  carrier,  —  the 
first  charging  a  loss  by  negligence ;  and  the  second,  that  the  package  was 
carelessly  delivered  to  another  person  than  Riley,  and  thereby  lost.  It  is 
alleged  in  both  paragraphs  that  the  defendant  was  a  foreign  corporation, 
and  a  common  carrier  of  goods  and  money,  etc.  It  is  not  alleged  that  it 
had  complied  with  the  provisions  of  our  statute  concerning  express  com- 
panies (1  G.  &  H.  327,  sec.  2)  ;  but  no  question  arises  as  to  that. 

"  The  answer  was,  1.  The  general  denial.  2.  That  the  agent  of  the 
express  company  at  Arcola  was  also  operator  of  the  telegraph  line  com- 
municating with  Indianapolis,  and  that  a  person  pretending  to  be  J.  O. 
Riley  despatched  through  the  said  operator  a  telegram  to  the  plaintiffs,  re- 
questing them  to  send  him  Si, 900  by  express ;  that  in  due  time,  the  same 
agent  received  by  express  a  package  purporting  to  contain  valuables,  ad- 
dressed to  J.  O.  Riley,  whereupon  the  same  person  who  had  despatched  the 
telegram,  demanded  said  package,  and  it  was  thereupon  delivered  to  him ; 
and  that  this  was  the  same  grievance  mentioned  in  the  complaint.  3. 
That  upon  the  arrival  of  the  package  at  Arcola,  a  person  presented  him- 
self, claiming  to  be  J.  O.  Riley,  and  demanded  the  package,  and  having 
identified  himself  as  the  very  person  upon  whose  telegram,  despatched  on 
the  day  previous,  in  the  name  of  J.  O.  Riley,  the  package  had  been  for- 
warded ;  thereupon  the  defendant,  having  no  means  of  identifying  the 
claimant,  and  believing  him  to  be  the  genuine  J.  O.  Riley,  delivered  the 
same  to  him. 

"  Demurrers  were  sustained  to  the  second  and  third  paragraphs  of  the 
answer,  and  this  raises  the  only  question  presented  for  our  consideration. 

[211] 


§   194  CONTRACTS    IN    RELATION  [PART   II. 

If,  by  reason  of  the  negligence  or  misfeasance  of 
the  company's  agents,  the  message  was  delivered 
to  the  wrong  person,  the  person  for  whom  the  mes- 
sage was  intended  would  have  his  remedy  ex  delicto 
against  the  company  for  such  damage  as  he  had  sus- 
tained by  reason  of  the  misdelivery. 

§  194.  If,  after  due  diligence  used  to  make  delivery 

The  paragraphs  are  the  same  in  legal  effect,  and  were,  in  our  opinion,  not 
good. 

"  The  express  undertaking  of  the  appellant  was  to  deliver  the  package 
to  '  J.  0.  Riley  in  person'  The  utmost  that  the  answer  alleged  was,  that 
the  delivery  was  to  another  person,  who  pretended  to  be  Riley.  He 
identified  himself  merely  as  having  so  pretended  on  the  day  before,  by 
transmitting  a  telegram  in  Riley's  name. 

"  This  was  no  better  evidence  that  his  name  was  Riley,  than  if  he  had 
so  stated  to  the  express  agent,  or  any  third  person.  That  the  package 
had  been  sent  in  response  to  a  telegram  purporting  to  be  from  J.  O.  Riley, 
simply  proved  that  Riley  had  credit,  or  some  arrangement  with  the  plain- 
tiffs to  furnish  him  money,  and  that.the  package  was  sent  to  him,  not  that 
he  was  the  person  who  sent  the  despatch,  or  that  any  man  pretending  to 
be  he,  was  to  receive  it.  The  electric  fluid  was  not  capable  of  trans- 
mitting the  man's  autograph,  so  that  the  plaintiffs  could  have  any  oppor.- 
tunity  of  detecting  an  imposition.  This  the  defendant  was  bound  to  know, 
and  should  have  acted  accordingly.  The  failure  to  act  with  proper  caution 
was  such  negligence  as  clearly  rendered  the  defendant  liable  for  its  con- 
sequences, even  though  its  liability  be  limited  to  that  of  a  forwarder,  as 
was  attempted  to  be  done  by  the  receipt  given.  That  liability  holds  him 
to  ordinary  diligence ;  i.e.,  such  care  as  every  prudent  man  commonly 
takes  of  his  own  property. 

"The  payment  of  SI, 900,  of  a  man's  own  money,  to  a  stranger,  with- 
out requiring  him  to  identify  himself  as  the  person  really  entitled  to  it, 
would  be  an  act  of  very  gross  carelessness. 

"Without  considering  whether  the  facts  pleaded  in  the  second  and 
third  paragraphs  of  the  answer  would  have  been  admissible  in  evidence 
under  the  general  denial,  we  are  of  opinion  that  these  paragraphs  were 
justly  held  bad  on  demurrer.  The  class  of  cases  cited  in  argument  for  the 
appellant,  being  cases  where  payments  had  been  made  on  forged  orders, 
and  it  was  held  that  money  thus  paid  to  an  innocent  party  could  not  be 
recovered  back,  unless  notice  of  the  forgery  had  been  given  on  the  same 
day,  we  do  not  deem  applicable  to  a  case  like  this.  The  reasons  upon 
which  these  decisions  rest  do  not  exist  here." 
[212] 


CHAP.  III.]  TO    MESSAGES.  §  195 

in  person  to  the  proper  party,  he  cannot  be  found, 
and  such  notice  is  given  as  the  usage  of  telegraph 
companies  requires,  that  the  message  is  at  the  office, 
the  company  will  be  excused  from  further  efforts  to 
make  the  delivery,  and  their  responsibility  will  be  at 
an  end.1 

We  should  think,  in  such  cases,  there  was  no  ob- 
ligation resting  upon  the  company  to  inform  the 
sender  of  the  message  of  their  inability  to  deliver  the 
message.  They  have  fully  complied  with  their  con- 
tract when  they  have  transmitted  the  message,  and 
used  the  diligence  which  the  law  requires  to  make 
the  delivery.  If  the  sender  desires  information  as  to 
the  delivery  of  the  message,  he  can  make  an  express 
contract  with  the  company  to  give  him  such  informa- 
tion.2 

§  195.  If  the  contract  with  the  sender  is,  that  the 
charges  for  transmission  are  to  be  collected  from 
the  person  to  whom  the  message  is  addressed,  or  if 
nothing  is  stipulated  between  the  parties  in  reference 
thereto,  and  the  message  is  sent  without  prepayment 
of  the  charges,  the  company  would  be  under  no  obli- 
gation to  deliver  the  message  until  the  charges  were 
paid. 

In  case  of  failure  or  refusal  to  pay  the  charges, 
by  the  person  to  whom  the  message  was  addressed, 
or  where  the  company  were  unable  to  find  the  proper 
person  to  make  delivery  to,  we  think  the  company 
would  have  a  lien  upon  the  message  for  its  charges  ; 

1  Fisk  v.  Newton,  1  Denio,  45,  as  to  carriers. 

8  It  is  usual,  we  believe,  for  telegraph  operators  to  make  the  inquiry 
gratuitously  for  the  sender  of  the  message,  whether  the  message  has  been 
delivered,  when  so  requested  by  him. 

[213] 


§197  CONTRACTS    IN    RELATION  [PART    II. 

and  would  have  a  right  to  sell  the  same  for  its 
charges,  as  other  bailees  may  do  in  enforcing  their 
lien  upon  the  thing  bailed.  Whether  it  had  any 
market  value  would  be  determined  by  the  demand 
for  such  an  article.1 

§  196.  It  would  seem  reasonable  to  require  of  the 
company,  where  a  party  refuses  to  accept  and  pay  for 
the  message,  that  they  shall  make  an  immediate  de- 
mand upon  the  sender  for  payment,  so  that  he  could 
have  his  option  to  pay  the  charges,  including  the 
cost  of  this  demand,  and  have  the  message  delivered ; 
and,  upon  payment  by  him,  that  the  duty  of  delivery 
would  immediately  arise.  Upon  a  delivery  of  the 
message,  or  a  sufficient  excuse  for  failure,  the  respon- 
sibility of  the  company  terminates,  and  the  implied 
contract  with  the  sender  has  been  complied  with. 

§  197.  The  telegraph  company  may  be  the  agent 
of  the  sender  of  the  message,  or  of  the  receiver  of 
the  message  where  there  is  privity  of  contract  with 
him ;  or  it  may  be,  that  in  some  cases  they  would 
be  held  to  be  the  agent  of  both  sender  and  re- 
ceiver, as  in  the  case  of  N.Y.  &  Wash.  Prin.  Teleg. 
Co.  v.  Dryburg.2  Wherever  the  relation  of  principal 

1  We  might  conceive  of  a  market  value  to  a  certain  class  of  messages, 
as  "  press  despatches,"  or  despatches  in  relation  to  the  condition  of  the 
markets,  and  such  like  ;  but  of  course  no  market  value  could  well  attach 
to  ordinary  private  despatches.  This,  however,  is  well  known  by  the  tele- 
graph companies,  and  they  therefore  properly  insist  on  prepayment  very 
strictly. 

*  In  the  case  of  Ellis  ».  Am.  Teleg.  Co.  13  Allen,  226,  the  right  of 
the  receiver  of  the  message  to  sue  and  recover  for  damages  consequent 
upon  error  in  transmission,  is  clearly  recognized ;  but  the  company  was 
held  to  have  complied  with  the  contract  under  the  rule  as  to  unrepeated 
ies. 
[214] 


CHAP.  III.]  TO    MESSAGES.  §  197 

and  agent  is  established  between  either  of  these 
parties  and  the  telegraph  company,  the  principles  of 
law  applicable  to  this  relation  in  other  cases  would 
apply  to  this,  in  respect  to  the  liabilities  of  the  one  to 
the  other.  And  so,  in  cases  of  controversy  between 
a  third  party  and  either  sender  or  receiver  of  the 
message,  in  relation  to  its  transmission,  or  any  other 
matter  with  which  the  duty  of  the  telegraph  company 
was  connected,  upon  all  questions  arising  as  to  the 
agency  of  the  telegraph  company,  the  same  principles 
would  be  applied  as  in  other  cases  of  agency. 


[215] 


§  199  EXTENT    OF    RESPONSIBILITY  [PART  II. 


CHAPTER  IV. 

EXTENT    OF    RESPONSIBILITY    IN    RELATION    TO  ^MESSAGES. 

§  198.  THIS  is  the  most  important  branch  of  tele- 
graph law.  The  extent  of  responsibility  is  to  be 
determined  by  considering  the  nature  of  the  engage- 
ment of  telegraph  companies  with  the  public,  and 
the  duties  which  the  law  imposes  upon  the  contract- 
ing parties.  The  subject  is  so  entirely  new,  and  the 
interests  involved  so  immense,  that  a  conflict  of  judi- 
cial opinion  is  naturally  expected.  Comparatively 
few  cases  have  been  reported ;  and  some  of  them 
have  turned  upon  questions  of  pleading  and  evidence. 
The  discussions  have  been  chiefly  directed  to  the 
analogies  between  telegraph  companies  and  common 
carriers.  We  will  present  the  subject  first  upon  the 
authorities ;  and  after  that,  submit  a  more  systematic 
view  upon  principle,  bearing  in  mind  that  the  utility 
of  the  common  law  and  the  wisdom  of  the  courts 
are  never  so  clearly  shown  as  in  the  application  of 
old  rules  to  new  facts. 

§  199.  In  the  case  of  Parks  v.  Alta  California  Tele- 
graph Company,1  the  Supreme  Court  of  California 
regarded  telegraph  companies  as  common  carriers, 
and  held  that  they  are  subject  to  the  same  stringent 
responsibilities  as  common  carriers  of  goods.  This 

1  13  Cal.  R.  422. 
[216] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  199 

decision  was  rendered  in  1859,  and  is  the  only  one 
known  to  us  in  which  this  doctrine  has  been  asserted 
without  qualification. 

The  case  was  this :  The  plaintiff  had  delivered  to 
the  defendant's  operator  the  following  message  for 
immediate  transmission:  "Due  $1,800;  attach  if  you 
can  find  property ;  will  send  note  by  to-morrow's 
stage."  This  message  was  addressed  to  the  agent  of 
the  plaintiff  at  Stockton,  and  was  in  answer  to  one 
received  that  morning  from  this  agent,  informing 
plaintiff  of  the  failure  of  a  firm  at  that  place,  and 
inquiring  the  amount  due  from  them  to  him.  There 
was  delay  in  the  transmission  of  the  message,  and 
before  its  reception,  prior  attachments  of  other  credi- 
tors of  the  firm  had  absorbed  their  assets.  These 
attachments  were  levied  after  the  time  when  the 
message  of  plaintiff  would  have  been  received,  had 
it  been  transmitted  without  delay.  Consequently  the 
plaintiff's  debt  was  lost,  as  it  appeared  that  an 
attachment  might  have  been  obtained  and  the  plain- 
tiffs debt  saved  if  the  message  had  been  promptly 
transmitted ;  or,  if  he  had  been  informed  that  it  could 
not  be  promptly  transmitted,  he  could  have  secured 
the  debt  by  taking  the  next  stage  for  Stockton. 

An  accident,  it  seems,  prevented  the  sending  of 
the  message,  of  which  the  plaintiff  was  not  informed 
until  9  o'clock  A.M.  of  the  next  day.  The  message 
was  then  forwarded,  but  did  not  reach  the  plaintiff's 
agent  until  about  12  M.,  and  the  writ  did  not  reach 
the  sheriffs  hands  until  about  6  P.M. 

The  jury  found  that  the  failure  to  send  the  mes- 
sage was  by  the  gross  neglect  of  the  company's  ser- 

'         [217] 


§  200  EXTENT   OF   RESPONSIBILITY  [PART  II. 

vant.  The  Court  below  held  that  a  telegraph  company 
\Ya>  not  a  common  carrier ;  that  it  was  not  in  any  sense 
an  insurer;  that  a  telegraphic  despatch  had  no  market 
value,  and  the  measure  of  damages  was  limited  to  the 
amount  paid  by  plaintiff  for  its  transmission. 

§  200.  In  the  Court  of  Appeals  it  was  argued  that 
the  telegraph  company  was  a  common  carrier ;  that 
it  was  a  public  vehicle,  whose  value  consisted  in  its 
accuracy  and  despatch,  which,  to  be  preserved,  must 
be  guarded  by  the  strict  rules  defining  the  liability  of 
common  carriers ;  and  that  no  exemption  from  such 
liability  could  be  claimed,  because  the  motive  power 
was  a  subtile  and  uncontrollable  agent. 

And  the  Court  sustained  this  view  in  an  opinion 
delivered  by  Baldwin,  J.,  who  said.  "  The  rules  of  law 
which  govern  the  liability  of  telegraph  companies 
are  not  new.  They  are  old  rules  applied  to  new  cir- 
cumstances. 

"Such  companies  hold  themselves  out  to  the  public 
as  engaged  in  a  particular  branch  of  business,  in 
which  the  interests  of  the  public  are  deeply  concerned. 
They  propose  to  do  a  certain  service  for  a  given  price. 
There  is  no  difference,  in  the  general  nature  of  the 
legal  obligation  of  the  contract,  between  carrying  a 
message  along  a  wire  and  carrying  goods  or  a  pack- 
age along  a  route.  The  physical  agency  may  be 
different;  but  the  essential  nature  of  the  contract  is 
the  same.  The  breach  of  the  contract,  in  the  one 
case  or  in  the  other,  is,  or  may  be,  attended  with  the 
same  consequences,  and  the  obligation  to  perform 
the  stipulated  duty  is  the  same  in  both  cases. 
The  importance  of  the  discharge  of  it  in  both  cases  is 

[218] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  202 

the  same.  In  both  cases  the  contract  is  binding,  and 
the  responsibility  of  the  parties  is  governed  by  the 
same  general  rules."  The  case  was  remanded  for  a 
new  trial. 

§  201.  With  due  deference  to  the  tribunal  from 
which  this  opinion  came,  we  submit,  that  the  case  as 
presented  did  not  require  the  determination  of  this 
question,  or  any  expression  of  the  views  here  an- 
nounced. It  seems  that  the  message  was  permitted  to 
remain  in  the  office,  from  the  time  it  was  received, 
until  9  o'clock  the  next  morning,  when  the  plaintiff 
for  the  first  time  was  informed  that  it  had  not  been 
sent;  and  then  it  did  not  reach  its  destination  until 
12  o'clock  M.  Whether  or  not  the  accident  that 
prevented  its  transmission  was  of  a  nature  that  would 
have  excused  the  company,  would  not  be  a  material 
inquiry ;  for,  whatever  its  character,  it  was  manifestly 
the  duty  of  the  company's  agent  to  have  informed  the 
plaintiff  that  the  message  could  not  be  promptly 
transmitted,  and  more  especially  as  the  message  dis- 
closed on  its  face  the  urgency  of  the  case,  and  the 
importance  of  immediate  transmission. 

§  202.  It  would  seem,  then,  that  in  this  respect 
there  was  negligence  on  the  part  of  the  company,  and 
such  negligence  as  would  make  them  liable  for  all 
the  direct,  natural,  and  proximate  damages  arising 
from  the  failure  of  the  plaintiff's  agent  to  obtain  the 
desired  information  in  time.  And  even  if  the  tele- 
graph company  could  be  held  only  to  that  degree  of 
care  and  diligence  which  is  exacted  of  ordinary  bailees, 
still  they  would  be  liable ;  and  so,  it  being  a  case  of 
actual  negligence,  it  mattered  not  whether  the  law 

[219] 


§  204  EXTENT    OF    RESPONSIBILITY  [PART  II. 

onerated  them  with  the  extraordinary  responsibility 
which  would  make  them  the  insurer  of  the  safe  and 
prompt  transmission  of  the  message,  or  only  held 
them  to  reasonable  care  and  diligence;  their  liability 
was  the  same  in  either  view  of  the  case. 

§  203.  The  case  of  Bowen  &  McNamee  v.  The 
Lake  Erie  Telegraph  Co.,1  of  which  we  have  only  a 
meagre  report,  tends  in  the  same  direction ;  but  the 
doctrine  is  not  so  explicitly  declared.  It  was  an 
action  to  recover  damages  sustained  by  reason  of  a 
mistake  in  the  transmission  of  the  message,  whereby 
the  words  "  one  handsome,"  were  altered  to  "  one 
hundred."  The  message  was  transmitted  from  Mon- 
roe in  the  State  of  Michigan,  to  the  city  of  Buffalo, 
N.Y. ;  and  the  mistake  occurred  in  an  office  on  de- 
fendant's line. 

It  was  urged,  in  defence,  that  telegraph  companies 
were  not  to  be  held  to  the  same  accountability  as 
common  carriers,  and  that  such  an  error  might  occur 
without  gross  negligence.  Starkweather,  J.  (in  the 
Court  of  Common  Pleas,  Ohio),  charged  the  jury,  in 
substance,  that  "  telegraph  companies,  holding  them- 
selves out  to  transmit  despatches  correctly,  were 
under  obligation  to  do  so,  unless  prevented  by  causes 
over  which  they  had  no  control ;  that  they  were  bound 
to  send  the  message  correctly ;  and  if  they  failed  in 
this  duty,  whereby  damage  had  occurred,  the  plaintiff 
would  be  entitled  to  recover." 

§  204.  In  view  of  the  fact  that  the  mistake  oc- 
curred in  an  office  on  defendant's  line,  this  charge 
would  operate  as  strongly  against  the  defendant  as  if 

1  1  American  Law  Reg.  685. 
[220] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  205 

the  Court  had  held  the  company  to  the  responsibility 
of  common  carriers  ;  but  it  is  probable  that  the  Court 
did  not  intend  to  assert  the  doctrine  so  broadly. 

§  205.  In  1855,  a  case  came  before  the  Court  of 
Common  Pleas  in  England,  in  which  the  plaintiffs 
were  damaged  by  a  change  in  a  message,  causing 
their  ship  to  be  taken  to  a  port  different  from  the  one 
ordered.  As  it  was  not  repeated,  the  defendants 
insisted  that  no  liability  had  arisen,  because  they  had 
adopted  a  rule  which  was  made  a  part  of  this  partic- 
ular contract,  notifying  the  public  that  they  would 
not  be  liable  for  mistakes,  unless  messages  should  be 
repeated,  and  that  they  could  thus  limit  their  liability 
under  the  Act  of  Parliament  allowing  them  to  adopt 
reasonable  conditions.  The  Court  avoided  all  collat- 
eral questions,  and  only  considered  the  reasonableness 
of  this  rule  as  applicable  to  an  unrepeated  message, 
and  said  "  that  in  this  respect  a  telegraph  company 
was  '  in  the  nature  of  a  carrier,'  who  might  limit  its 
liability  by  a  special  notice,  subject  to  the  condition 
that  it  could  not  limit  it  so  as  to  protect  itself  against 
the  consequences  of  gross  negligence." 

We  give  the  case  below,1  that  the  reader  may  see 

1  McAndrew  t>.  The  Elec.  Teleg.  Co.  33  Eng.  Law  &  Eq.  R.  180. 

This  was  an  action  to  recover  damages  for  a  loss  sustained  in  con- 
sequence of  a  mistake  in  the  transmission  of  a  message.  The  company 
had  the  usual  regulation,  so  often  heretofore  referred  to,  as  to  unrepeated 
messages ;  the  message  in  question  was  sent  as  an  unrepeated  message. 
It  was  agreed  that  the  question  presented  by  the  case  was  one  of  law  ; 
viz.,  whether  the  condition  as  to  unrepeated  messages  was  reasonable  or 
not. 

In  discussing  this  point,  Byles,  Sergt.,  said,  "  The  defendants,  by  their 
acts,  are  placed  in  the  position  of  persons  who  have  liabilities  cast  upon 
them  at  the  common  law,  —  such  as  carriers,  who  are  bound  to  carry ;  inn- 

[221] 


§  205  EXTENT    OF    RESPONSIBILITY  [PART  II. 

how  the  subject  was  discussed  at  that  early  day ;  and 
because  it  is  a  leading  case,  and  a  subject  for  refer- 
ence and  comment  elsewhere.  Mr.  Parsons,  in  his 

keepers,  who  are  bound  to  receive  guests  ;  or  the  owner  of  a  mill,  at  which 
the  tenants  are  bound  to  grind,  and  who  is  bound  to  take  their  grist.  Here 
the  company  are  bound  to  transmit  the  messages  which  any  one  may  wish 
to  send ;  and  this  obligation  would  be  evaded  altogether,  if  they  could  im- 
pose unreasonable  conditions  ;  the  Act  of  Parliament  has,  therefore,  ex- 
pressly limited  the  regulations  they  may  make  by  the  word  '  reasonable.' 
The  question  therefore  is,  Are  the  conditions  indorsed  on  the  message 
proper,  and  so  brought  home  to  the  plaintiff's  knowledge,  reasonable  ?  It 
is  submitted  that  these  are  conditions  such  as  the  company  have  no  right  to 
impose.  They  sell,  so  to  speak  three  kinds  of  articles,  —  unrepeated  mes- 
sages, repeated  messages,  and  insured  messages.  After  advising  the  public 
that,  in  order  to  provide  against  mistakes,  messages  ought  to  be  repeated, 
and  half  the  original  charge  is  added  for  repeating,  they  go  on  to  say, '  the 
company  will  not  be  responsible  for  mistakes  in  the  transmission  of  unre- 
peated messages,  from  whatever  cause  they  may  arise.'  Then,  as  to  re- 
peated messages,  the  only  distinction  is,  that  the  words  '  from  whatever 
cause  they  may  arise,'  are  omitted.  In  both  cases  they  say  they  will  not 
be  responsible  for  any  mistakes,  unless  the  message  be  insured  ;  and  then 
follows  a  scale  of  premiums. 

"  Now,  as  to  insuring,  —  although  the  question  will  not  actually  turn  on 
that,  —  what  is  a  man  to  insure  ?  How  is  it  possible  that  he  can  calculate 
the  risk,  or  the  damages  likely  to  arise  from  a  mistake  in  the  transmission 
of  a  message  ?  How,  for  instance,  in  the  present  case,  could  the  plaintills 
calculate  upon  their  ship  being  missent  to  Southampton  ?  In  order  to 
know  what  he  is  to  insure  against,  he  must  first  know  what  mistakes  the 
company  are  going  to  commit." 

[Jervis,  C.J. :  "  Do  you  maintain  that  the  legislature  intended  to 
cast  on  the  company,  for  2s.  6d.,  a  liability  to  £100,000  ?  "] 

"  So  far  as  this :  that  if  it  can  be  made  out,  for  example,  that  a  mistake 
occurred  from  gross  negligence  of  their  servants,  they  would  be  liable. 
The  legislature  did  intend  that ;  the  legislature  never  could  have  intended 
the  public  to  have  the  benefit  of  this  means  of  transmitting  messages,  and 
yet  that  there  should  be  conditions  imposed,  as  that  by  no  possibility  could 
the  company  be  obliged  by  the  public  to  do  their  duty.  Surely  a  condi- 
tion which  excludes  under  any  circumstances  the  possibility  of  any  liability 
whatever,  on  the  part  of  the  company,  is  unreasonable." 

[Jervis,  C.J. :  "  Look  at  the  case  without  reference  to  the  statute,  as  a 
carrier  at  common  law,  for  instance.  A  common  carrier  has  the  right  to 
make  a  special  contract  to  limit  his  liability;  still  he  is  liable  for  gross 
1222] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  205 

work  upon  Contracts,  refers  to  it  as  sustaining  the 
doctrine  that  they  are  common  carriers  ;  and,  referring 

negligence.  You  admit  that  the  point  of  gross  negligence  does  not  arise ; 
it  is  subject  to  that  qualification."] 

"  They  say  they  will  not  be  responsible  for  any  mistakes  whatever ; 
and  even  if  repeated,  you  may,  for  your  own  security,  pay  a  higher  sum, 
but  even  then  we  will  not  be  responsible."  .  .  . 

[Jervis,  C  J. :  "  Are  there  not  two  views  of  looking  at  the  case  ?  First, 
are  the  conditions  within  the  '  regulations '  contemplated  by  the  act  ? 
Secondly,  if  not,  are  the  character  and  constitution  of  the  company  such  as 
will  enable  them  to  make  such  contracts  by  reasonable  notice  ?  "] 

"  No  doubt  a  carrier  at  common  law  could  limit  his  liability,  but  it 
must  be  within  reasonable  bounds.  He  cannot  limit  it  absolutely.  In 
Garnett  v.  Willan  (5  B.  &  Aid.  56),  Bayley,  J.,  thus  expresses  the  law  : 
'  A  carrier  is  entitled  to  have  a  compensation  in  proportion  to  the  value  of 
the  article  intrusted  to  his  care,  and  the  consequent  risk  which  he  runs. 
He  may,  therefore,  by  a  special  notice,  limit  his  responsibility  to  a  reasona- 
ble extent.  So  that  it  comes  to  this  :  In  all  cases  where  a  man  has  the 
liability  cast  upon  him,  by  the  common  law,  of  entertaining  or  keep- 
ing or  carrying,  he  can  only  limit  his  responsibility  to  a  reasonable  extent. 
Therefore,  when  the  Act  of  Parliament  casts  upon  the  defendants  the  duty 
of  conveying  messages  for  all  the  public,  it  is  submitted  that  even  without 
the  words  of  the  act  as  to  reasonable  regulations,  they  could  only  limit 
their  liability  to  a  reasonable  extent.' 

"  In  other  words,  the  question  simply  is,  are  these  conditions  reason- 
able or  not,  —  that  for  unrepeated  messages  they  will  not  be  liable  under 
any  circumstances,  neither  for  repeated  messages,  beyond  £5 ;  and  they 
will  only  be  liable  in  case  of  a  premium  paid  for  insurance  ?  " 

[Jervis,  C. J. :  "  The  only  condition  under  discussion  is  as  to  unrepeated 
messages.  Are  they  to  be  liable  for  unrepeated  messages  ?  "] 

"  It  is  submitted  that  the  whole  of  the  conditions  are  to  be  taken  to- 
gether. The  alternative  which  the  company  really  proposes  is  this  :  You 
shall  either  exempt  us  from  all  liability  of  every  kind,  even  if  our  ser- 
vants should  cut  the  wires ;  or  you  shall  pay  us  a  sum  as  insurance,  which 
it  is  impossible  for  you  to  calculate.  That,  it  is  submitted,  is  not  a  condi- 
tion which  the  Act  of  Parliament  contemplates,  or  the  general  use  which 
the  public  ought  to  have  of  the  circumstances." 

Jervis,  C.J. :  "  I  am  of  opinion  in  this  case  that  there  ought  to  be  no 
rule.  I  suggested,  in  the  course  of  the  argument,  on  my  brother  Byles's 
motion,  that  one  mode  in  which  the  case  might  be  considered  was,  whether 
the  condition  which  is  on  the  back  of  the  contract  was  or  was  not  a 
regulation  within  the  meaning  of  the  Act  of  Parliament.  He,  upon  con- 

[223] 


§  205  EXTENT    OF    RESPONSIBILITY  [PART  II. 

to  this  case,  says,  "  It  has  been  held  in  England,  by 
the   Queen's   Bench,  that   telegraph   companies   are 

sideration,  had  very  properly  not  presented  that  point,  because  it  comes, 
in  effect,  to  the  same  thing,  whether  it  was  or  was  not  a  regulation  within 
the  act.  If  it  be  a  regulation  within  the  act,  then  the  question  would 
arise,  is  it  reasonable  within  the  act  ?  On  the  other  hand,  if  it  be  not  a 
regulation  within  the  act,  then  the  company  would  be  in  the  nature  of  a 
carrier,  who  would  have  a  certain  liability  imposed  upon  him  at  common 
law ;  but  they  might  limit  this  liability  by  special  notice,  as  a  carrier 
could,  subject  to  the  condition  or  qualification  that  they  could  not  limit 
it  to  the  extent  of  protecting  themselves  against  the  consequences  of 
gross  negligence.  Therefore,  in  either  way  of  looking  at  the  case,  the 
question  would  be,  aye  or  no,  Is  this  particular  regulation  or  condition 
reasonable  or  not  ?  Now,  we  are  not  called  upon  to  say  whether  the 
whole  and  every  portion  of  the  conditions  at  the  back  of  the  contract  is 
or  is  not  reasonable ;  although  my  brother  Byles  was  warranted  in  re- 
ferring to  different  parts  of  it,  as  illustrating  his  argument.  All  that  we 
are  called  on  to  say  is  whether  the  part  which  is  relied  on  as  a  defence 
is  or  is  not  reasonable;  viz.,  that  the  company  will  not  be  responsible 
for  unrepeated  messages.  So  far  from  that  being,  as  was  contended  by 
my  brother  Byles,  an  unreasonable  qualification,  it  seems  to  me  to  be 
highly  just  and  reasonable  that  the  company  should  require  to  be  checked, 
as  it  were,  as  a  means  of  ascertaining  whether  they  are  correctly  repre- 
senting what  has  been  intrusted  to  them  to  convey,  by  having  the  message 
repeated;  so  that  the  person  who  sends  it  may  see  whether  they  are 
correct  in  the  message  they  have  sent.  My  brother  Byles  argues  that 
this  is  not  reasonable,  thus :  '  It  is  impossible  to  calculate  the  loss  which 
is  to  be  insured  against ;  therefore  you  cannot  estimate  the  amount  for 
which  the  premium  is  to  be  paid  as  the  price  of  the  insurance.'  If  that 
be  a  valid  argument,  it  goes  against  all  insurance,  and  the  consequence 
would  be  that  in  every  possible  case  the  company  would  be  without  pro- 
tection, and  would  be  obliged,  from  the  uncertainty  of  the  risk  which  of 
necessity  is  incident  to  the  nature  of  the  business,  to  take  on  themselves 
(what  it  is  not  contended  that  they  are)  the  character  of  general  insurers 
against  all  loss.  For  if  this  condition  is  unreasonable  because  you  can- 
not ascertain  the  amount  to  be  insured  against,  as  you  can  in  no  case 
ascertain  the  amount  to  be  insured  against,  every  protection  would  be 
unreasonable.  There  is,  in  fact,  an  infirmity  in  this  respect,  necessarily 
arising  from  the  nature  of  the  business  undertaken  between  the  con- 
tracting parties,  which  is  well  known  to  them  both,  who  engage,  the  one 
to  send,  the  other  to  have  sent,  a  message  by  his  direction ;  but  this  is 
no  reason  why  the  former  ought  not  to  avail  themselves  of  what  persons 
in  their  position,  namely,  carriers,  may;  viz.,  stipulations  and  condi- 
[224] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  205 

common  carriers ;  and  the  same  thing  has  been  held 

tions  brought  home  to  the  knowledge  of  the  party  contracting  with  them, 
which  will  limit  their  liability.  I  think  this  highly  reasonable ;  and  there- 
fore there  ought  to  be  no  rule." 

Crowder,  J. :  "I  am  of  the  same  opinion.  By  the  16th  sec.  of  the  16 
&  17  Viet.  c.  203,  it  is  enacted,  that  the  use  of  the  telegraph  shall,  subject 
to  such  reasonable  regulations  as  may  be  from  time  to  time  made  or 
entered  into  by  the  company,  be  open  for  the  sending  and  receiving  of 
messages ;  and  the  question  here  is,  whether  the  regulation,  which  has 
been  referred  to,  is  a  reasonable  regulation  within  the  meaning  of  that 
section.  In  the  opinion  which  I  give,  I  confine  myself  entirely  to  the 
regulation  which  raises  the  question  upon  this  record,  and  do  not  express 
any  opinion  on  the  whole  which  I  find  at  the  back  of  this  message 
paper,  embracing  as  it  does,  some  points  about  which  there  may  be  consid- 
erable doubt.  The  question  is,  whether  it  is  a  reasonable  regulation  that 
the  message  must  be  repeated  in  order  to  make  the  company  responsible. 
Now,  the  words,  so  far  as  that  part  of  the  indorsement  is  concerned,  con- 
taining the  rule  are,  '  The  public  are  informed,  that  in  order  to  provide 
against  mistakes  in  the  transmission  of  messages  by  the  electric  telegraph, 
every  message  of  consequence  ought  to  be  repeated.  Half  the  usual  price 
for  transmission  will  be  charged  for  repeating  the  message.  The  company 
will  not  be  responsible  for  mistakes  in  the  transmission  of  unrepeated  mes- 
sages, from  whatever  cause  they  may  arise.'  At  all  events,  the  public 
have  thus  an  opportunity  of  paying  a  small  sum  for  an  unimportant  mes- 
sage. If  it  is  a  matter  of  importance,  and  they  wish  to  avoid  mistakes,  it 
may  be  repeated,  and  then  an  additional  sum  is  to  be  paid  for  its  being  re- 
peated. What  is  there  in  the  slightest  degree  unreasonable  in  that  ?  I 
do  not  enter  into  the  question,  how  far  the  condition  afterwards  imposed 
here,  was  correct  or  not.  That  is  not  before  us.  The  mistake  which  arose 
between  '  Hull '  and  '  Southampton,'  was  alleged  to  have  arisen  from 
the  message  not  having  been  repeated.  That  appears  to  have  been  a 
mistake  within  this  regulation ;  and  I  therefore  think  that  there  ought  to 
be  no  rule." 

Willes,  J. :  "I  am  of  the  same  opinion.  It  may  be  material  to  consider 
whether  the  word  '  regulation '  in  the  Act  of  Parliament  was  intended  to 
include  such  a  condition  as  this  introduced  into  the  contracts  between  the 
company  and  those  who  might  send  messages ;  because,  supposing  that  the 
word  '  regulation '  does  include  such  part  of  the  contract,  it  might  be 
reasonable  for  the  company  to  do  what  a  person,  if  he  were  to  send  a  mes- 
sage for  himself  by  the  telegraph,  would  do.  If  a  man  wants  to  send  a 
message  by  the  telegraph  which  shall  be  correctly  read,  he  would  have 
it  repeated  ;  then,  if  it  is  repeated,  that  imposes  more  labor,  and  he  must 
pay  for  it ;  he  must  pay  more  for  a  repeated  message  than  for  an  unre- 

15  [225] 


§  206  EXTENT    OF    RESPONSIBILITY  [PART  II. 

in  this  country,"  1  citing  Parks  v.  Alta  California  Tel- 
egraph Company. 

§  206.  It  will  be  observed,  however,  that  the  Court 
only  said  they  are  "  in  the  nature  of  a  carrier ; "  which 
words  do  not  imply  as  much  as  indicated  by  the 
learned  writer  just  quoted ;  but  the  analogy,  as  a 
matter  of  law  and  fact,  is  distinctly  recognized  as  the 
basis  upon  which  the  decision  is  placed.  And  it  may 
be  observed  by  the  reader,  that  there  are  principles 
affirmed  and  points  established  in  nearly  all  the  cases, 
which  in  a  similar  manner  sustain  this  view,  although 
the  conclusion  of  the  Court,  in  the  particular  case, 
may  be  against  it.  The  reasons  for  the  same  conclu- 
sion are  not  always  the  same,  and  in  some  instances 


peated  message  ;  and  of  course  he  must  pay  more  to  the  company  for  tak- 
ing upon  themselves  to  insure  the  message  going  rightly,  notwithstanding 
the  risk  arising  from  the  accidents  to  which  sudi  things  are  liable.  I 
think  that  it  is  obviously  reasonable  that  a  man  who  requires  either  greater 
labor  or  the  greater  risk -of  the  company,  should  pay  them  something 
more  for  it.  It  is  not  stated  here  that  the  amount  charged  by  the  com- 
pany by  way  of  difference  between  the  unrepeated  and  the  repeated 
message,  or  the  uninsured  and  the  insured  message,  is  greater  than  fairly 
represents  the  difference  of  labor  or  the  amount  of  risk.  On  the  other 
hand,  supposing  the  word  '  regulation'  does  not  extend  to  a  condition  im- 
posed by,  the  company  in  their  capacity  of  bailees,  then,  so  far  as  they  are 
bailees,  they  are  regulated  by  the  common  law.  Now,  so  far  back  as  the 
year  1803  it  appears,  by  the  case  of  Izett  v.  Mountain  (4  East,  371),  to 
have  been  considered  so  clear  that  counsel  declined  to  argue,  that  a  car- 
rier, upon  whom  is  imposed  the  liability  of  an  insurer  by  the  common  law, 
could  not  protect  himself  by  such  a  notice  as  was  equivalent  to  this  condi- 
tion ;  the  carrier's  notices  being  nothing  more  than  conditions  imported 
into  the  contracts  between  them  and  their  customers.  If,  therefore,  at 
common  law,  such  a  condition  might  have  been  imposed  on  the  plaintiffs, 
it  is  clear  that  under  this  statute  there  is  nothing  to  prevent  the  company 
from  imposing  this  condition." 

Rule  refused. 

1  2  Parsons  on  Con.  251,  ed.  1866. 
[226] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  207 

the  points  conceded  should  have  controlled  the  case, 
though  the  decision  was  adverse  to  holding  telegraph 
companies  to  be  common  carriers.  We  have  not 
attempted  to  classify  the  cases  otherwise  than  by  the 
result  of  the  decision  on  this  point.  We  shall  avail 
ourselves  of  good  reasoning  wherever  found,  and  en- 
deavor to  conduct  the  investigation  to  a  legitimate 
conclusion. 

§  207.  We  now  produce  a  number  of  cases  in 
which  the  courts  have  taken  the  opposite  view.  The 
Court  of  Appeals  in  Maryland,  in  the  case  of  Birney 
v.  New  York  &  Washington  Printing  Telegraph 
Co.,1  held  that  a  telegraph  company  is  not  a  common 

1  18  Md.  R.  341.  The  argument  of  counsel  and  the  opinion  are  given 
as  illustrating  and  supporting  each  other.  By  an  agreed  statement  of 
facts,  it  appeared  that  the  defendant  was  an  incorporated  company, 
carrying  on  the  business  of  publicly  sending  for  hire  messages  by  tele- 
graph from  Baltimore  to  New  York,  having  places  of  business  in  both 
cities,  and  lines  of  telegraph  extending  between  them ;  that  its  authorized 
agent  received  from  the  plaintiff,  at  its  place  of  business  in  Baltimore, 
on  the  10th  of  November,  1858,  at  nine  o'clock  A.M.,  a  message  to  be 
sent  to  Drake  &  Carter,  stock-brokers  in  New  York,  and  agents  of  the 
plaintiff,  ordering  them  to  sell  for  him  on  that  day  one  hundred  shares 
of  the  New  York  Central  Railroad  stock,  then  in  their  possession  and 
belonging  to  the  plaintiff;  that  the  plaintiff  paid  the  charges  of  trans- 
mission ;  but  that  the  defendant  forgot  and  neglected  to  send  the  said 
message,  and  that  it  never  was  sent.  And  then  the  agreement  set  forth 
the  difference  in  price  of  the  stock  in  New  York  on  the  10th  and  the 
15th,  when  the  plaintiff  for  the  first  time  learned  that  the  defendant  had 
neglected  to  send  the  message,  and  on  which  day  he  sold  the  same. 

It  appeared  that  the  company  had  the  usual  regulations  as  to  repeated 
messages,  and  as  to  insured  messages  (as  in  case  of  Breese  &  Mumford 
v.  The  United  States  Telegraph  Company.  See  ante,  §  149).  The 
plaintiff  paid  neither  a  repeating  nor  insurance  price  as  named  in  these 
terms. 

Gwinn,  for  the  appellee,  said,  "A  party  dealing  with  the  corpora- 
tion is  bound  by  these  rules  and  regulations,  thus  forming  a  part  of  the 
contract ;  he  is  bound  to  know  their  rules,  and  to  ascertain  for  himself 
whether  the  agent,  by  whom  alone  the  corporation  can  act,  was  author- 

[227] 


§  207  EXTENT    OF    RESPONSIBILITY  [PART  II. 

carrier,  but  a  bailee,  performing  through  its  agents  a 
work  for  its  employer,  according  to  certain  rules  and 

ized  to  make  the  contract  on  which  he  relies ;  he  is  bound  to  ascertain 
for  himself  the  extent  of  the  authority  conferred  upon  such  agent.  But 
the  appellant  attempts  to  assimilate  this  case  to  that  of  a  common  carrier, 
and  to  maintain  that  the  defendant  was  subject  to  a  legal  responsibility 
which  it  had  no  power  to  modify,  except  by  an  express  notice  brought 
home  to  the  parties  dealing  with  it. 

"  I  shall  attempt  to  establish  upon  principle  that  a  telegraph  company 
is  not  a  common  carrier,  and  therefore  is  not  put  to  the  necessity  of 
making  what  may  amount  to  a  special  contract,  in  order  to  modify  any 
common  law  liability  as  an  insurer.  I  enter  at  this  point  upon  new 
ground,  which  the  case  requires  should  be  explored.  We  adopt  the 
proper  definition  of  a  common  carrier,  when  we  select  the  text  and  cita- 
tions of  Chitty  on  Carriers,  15.  He  is  one  who,  by  ancient  law,  held, 
as  it  were,  a  public  office,  and  was  bound  to  the  public.  To  render  a 
person  liable  as  a  common  carrier,  he  must  exercise  the  business  of 
carrying  as  a  public  employment,  and  must  undertake  to  carry  goods 
for  all  persons  indiscriminately.  He  is  a  person  that  carries  goods  for 
hire.  (Jacob's  Law  Dictionary,  tit.  Carrier.)  The  custom  of  the  realm 
created  his  employment  and  fixed  his  responsibility.  Since  he  was  in 
charge  of  the  goods  from  the  moment  he  received  them  until  the  end 
of  their  journey,  that  custom  made  him  responsible  for  them  in  every 
event  against  which  individual  care  and  foresight  could  guard.  (Jones 
on  Bailments,  104.) 

"  He  was  left  with  but  two  excuses  which  would  avail  him  in  case  of 
loss.  Where  the  misfortune  occurred  by  the  act  of  God,  or  through  the 
enemies  of  the  State,  he  was  exempt,  but  in  no  other  case.  The  reason 
of  this  responsibility,  founded  on  the  impossibility  of  otherwise  holding 
the  carrier  to  strict  account,  is  clear  enough  ;  and  the  result  of  the  rule 
is,  practically  to  make  the  carrier  insurer  against  every  injury  or  loss, 
except  such  as  is  occasioned  by  the  act  of  God  or  of  the  enemies  of  the 
State.  But  we  repeat,  that  no  employment  comes  within  the  definition 
of  a  common  carrier,  according  to  the  custom  of  the  realm,  except  where 
the  employment  is  concerned  in  the  transportation  of  goods.  (Chitty 
on  Carriers,  243,  306.) 

"  The  inquiry  here  is,  whether  a  telegraph  company  is  a  common  car- 
rier, according  to  the  custom  of  the  realm ;  that  is  to  say,  does  it  carry 
goods,  and  is  it  an  insurer  from  the  nature  of  its  occupation  ?  These  are 
tests  which  will  enable  us  to  discover  whether  the  defendant  is  a  common 
carrier  or  not.  We  settle  these  questions,  however,  when  we  dispose  of 
the  first. 

"  It  was  because  of  the  fact  that  the  goods  were  in  his  sole  custody, 
[228] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  207 

regulations,  which,  under  the  statute,  it  had  the  right 
to  make  for  its  government.  The  counsel  urged,  and 

and  were  subject  to  his  single  superintending  care  from  the  moment 
they  were  received  to  the  moment  the  terminus  of  the  journey  was 
reached,  that  the  custom  of  the  realm  and  the  common  law  made  the 
carrier  responsible  for  them  in  every  event,  except  those  against  which 
individual  vigilance  could  not  guard.  It  was  because,  in  its  contempla- 
tion, only  the  providence  of  God  and  the  acts  of  the  enemies  of  the 
State  were  events  beyond  the  control  of  the  carrier,  that  he  was  held 
responsible  for  all  losses  proceeding  from  other  sources  to  the  goods  in 
his  charge,  and  was  for  this  reason  practically  an  insurer.  But  his  whole 
obligation  was  one  founded  upon  the  actual  and  manual  possession  of  the 
goods  of  the  person  employing  him.  Nor  was  the  rule  an  unreasonable 
one,  when  we  know  that  the  carrier  who  received  the  goods  was  able  to 
measure,  by  his  knowledge  of  their  character  and  value,  the  terms  upon 
which  he  would  undertake  to  carry  them,  and  also  the  precise  measure 
of  diligence  which  was  needful  to  their  safety. 

"  Now  we  ask,  whether  the  duty  which  a  telegraph  company  has  to 
perform  ranges  itself  under  any  such  description,  or  is  capable  of  enjoy- 
ing any  such  safeguard  in  its  exercise?  In  the  first  place,  it  agrees  to 
carry  no  goods,  nor  any  thing  that  can  be  so  described  by  the  greatest 
stretch  of  legal  ingenuity. 

"  What  does  a  telegraph  company  do  ? 

"  It  receives  a  written  message  for  transmission.  It  uses  machinery 
to  reproduce  the  words  of  that  message  at  a  distant  point,  either  by 
direct  copying  of  the  message,  under  some  alphabetical  system,  or  by 
translating  that  message  into  certain  symbols,  which,  marked  upon  paper 
at  a  distant  point,  are  there  translated  into  our  ordinary  language.  Can 
it  be  said  to  be  even  in  the  manual  charge  of  the  message  so  transmitted, 
during  its  transmission  ? 

"  Not  so.  It  relies  confessedly  on  machinery,  and  upon  threads  of 
communication,  which  stretch  hundreds  of  miles,  and  are  liable  at  each 
fraction  of  an  inch  to  break,  or  interruption,  through  accident,  influence 
of  climate,  wantonness,  or  malice. 

"  These  circumstances  make  it  impossible  for  the  company  to  remain 
in  actual  practical  custody  and  observation  of  its  line.  The  idea  of  an- 
nexing to  such  machinery,  and  to  such  modes  of  communication,  the 
office  of  a  common  carrier,  and  requiring  its  proprietors  to  regard  them- 
selves as  insurers  of  every  message  committed  to  them,  except  in  cases 
in  which  they  could  show  that  they  had  failed  to  transmit  a  message 
because  of  the  providence  of  God,  or  of  the  violence  of  the  enemies  of 
the  State,  would  cast  upon  them  an  intolerable  burden. 

"  The  carrier  of  the  goods  can  avail  himself  of  such  excuses,  for  he 

[229] 


§  207  EXTENT    OF    RESPONSIBILITY  [PART  II. 

the  Court  yielded  to  the  force  of  the  argument,  that 
a  telegraph  company  should  not  be  held  to  that  severe 

sees  what  happens  to  his  charge  at  the  moment  it  happens,  by  his  own 
vision  or  the  eyes  of  his  agent.  But  a  telegraph  company,  owing  to  the 
myriad  causes  which  may  disturb  the  security  of  its  lines,  would  be  left 
as  often  open  to  liability  because  of  the  providences  of  God,  unknown  to 
it,  as  because  of  any  other  reason.  It  is  impossible  to  come  to  the  con- 
clusion that  the  law  casts  upon  a  telegraph  company  the  character  of  an 
insurer.  And  since  it  neither  receives  goods  for  transmission,  nor  is  an 
insurer,  because  of  the  character  of  its  undertaking  as  to  such  goods,  we 
must  look  elsewhere  for  the  class  of  bailments  to  which  its  operation 
ought  to  be  likened.  For  we  may  add  here,  if  it  be  a  common  carrier, 
and  a  message  sent  by  it  was  defectively  delivered,  or  not  delivered,  it 
would  be  liable,  under  a  declaration  properly  framed,  and  laying  special 
damage,  for  all  the  direct  damages  arising  from  such  defective  delivery 
or  non-delivery  of  the  message.  But  surely,  it  may  be  asked  whether 
any  Court  would  hold  that  a  telegraph  company  was  liable  for  the  enor- 
mous losses  that  might  be  entailed  upon  it  for  the  non-transmission  or 
the  defective  transmission  of  a  message  in  relation  to  transactions  of  the 
pecuniary  importance  of  which  it  was  not  advised  by  the  Sender,  and  of 
which  perhaps  the  arbitrary  words  used  as  symbols  in  the  message  as 
written  might  give  it  no  warning.  No  such  enormous  and  dispropor- 
tionate risk  is  cast  upon  the  carrier  of  goods,  because  the  carrier  has 
always  the  means  of  apportioning  the  risk  to  his  responsibility.  The 
true  character  of  the  bailment  made  to  a  telegraph  company  is  in  that 
class  known  as  the  locatio  opens  faciendi.  (Story  on  Bailments,  §  370.) 
" The  telegraph  company  'does  some  work  and  bestows  some  care 
on  the  thing  bailed.'  (1  Parsons  on  Contracts,  610.)  It  is  not  an 
insurer,  but  comes  within  the  strong  and  clear  language  of  Justices 
Turton,  Gould,  and  Powys,  in  the  celebrated  post-office  case  of  Lane 
v.  Cotton,  reported  in  1  Salk.  17,  and  1  Ld.  Raym.  646.  '  Its  office  is 
for  intelligence,  not  for  insurance.'  A  telegraph  company  may,  with  such 
knowledge  as  it  has  of  the  condition  of  its  line,  assume  the  office  of  an 
insurer,  if  it  chooses  so  to  do,  for  certain  considerations ;  but  the  duty 
of  insurance  is  not  cast  on  it  by  the  law.  It  is  not  an  insurer  except  it 
becomes  so  by  contract,  and  therefore  it  is  not  a  carrier.  This  telegraph 
company  was  not  a  common  carrier,  but  a  bailee,  performing  through  its 
agents  a  work  for  its  employer,  according  to  certain  rules  and  regula- 
tions which  it  was  authorized  to  prescribe  for  its  government.  It  was 
not  a  common  carrier,  because  by  the  Act  of  1852,  c.  369,  sec.  10,  it 
was  authorized  to  contract,  not  by  force  of  any  common  law  duty  or 
obligation,  but  in  accordance  with  its  rules  and  regulations ;  and  this 
power  is  inconsistent  with  the  common  law  definition  of  a  carrier.  The 
[230] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  207 

responsibility  which  would  make  it  the  insurer  of  the 
message,-  because  its  agents  and  servants  cannot  go 
with  it  in  the  course  of  transmission,  and  remain  in 
the  actual  practical  custody  of  the  line  in  all  its 
length ;  and  consequently  cannot  foresee  and  avoid 
the  casualties  and  delays  which  may  attend  the  mes- 
sage in  its  transit ;  and  that  herein  is  a  marked  and 
essential  difference  between  it  and  the  common  car- 
rier of  goods,  who  is,  either  himself  or  by  his  agents, 
all  the  time  present  at  all  stages  of  the  route  with 
the  goods  he  carries,  and  can  see  what  happens  to 

employer  who  knew,  or  was  supposed  in  law  to  know,  that  the  engage- 
ments of  the  company  were  subordinated  to  the  rules  and  regulations 
thus  formally  adopted,  does  himself,  in  law,  ingraft  them  on  his  contract 
of  bailment,  and  is  bound  by  them,  if  they  were  rules  and  regulations 
which  the  corporation  contracting  with  him  had  the  right  to  adopt."  .  .  . 

Goldsborough,  J.,  in  delivering  the  opinion  of  the  Court,  said,  .  .  . 
"  The  appellant's  counsel  attempted  to  assimilate  the  responsibility  of  this 
telegraph  company  to  that  of  a  common  carrier.  But  the  distinction  is 
obvious.  It  is  well  denned  by  the  appellee."  [Then  quotes  from  the  argu- 
ment above  given,  and  continues.]  ''  While  a  common  carrier  is  an 
insurer,  and  is  protected  from  liability  by  the  act  of  God  or  the  enemies 
of  the  State,  he  can  avail  himself  only  of  such  excuses.  He  sees  what 
happens  to  his  charge  the  moment  it  happens.  But  a  telegraph  com- 
pany, owing  to  innumerable  causes  which  may  disturb  the  security  of  its 
lines,  would  be  as  often  open  to  liability  because  of  the  providences  of 
God  unknown  to  it,  as  because  of  any  other  reason. 

"  This  telegraph  company  is  not  a  common  carrier,  but  a  bailee,  per- 
forming through  its  agents  a  work  for  its  employer,  according  to  certain 
rules  and  regulations,  which,  under  the  law,  it  has  the  right  to  make  for 
its  government.  The  appellant  is  supposed  to  know  that  the  engage- 
ments of  the  appellee  are  governed  by  those  rules  and  regulations,  and 
does  himself  in  law  ingraft  them  in  his  contract  of  bailment,  and  is  bound 
by  them. 

"  The  appellee  cannot  be  considered  a  common  carrier,  because  by 
the  Act  of  1852,  c.  369,  it  was  authorized  to  contract,  not  by  force  of 
any  common  law  duty  or  obligation,  but  in  accordance  with  its  rules  and 
regulations ;  and  this  power  is  inconsistent  with  the  common  law  defini- 
tion of  a  carrier." 

[231] 


§  209  EXTENT    OF    RESPONSIBILITY  [PART  II. 

his  charge  the  moment  it  occurs.  Not  only  is  this  the 
case,  but  as  he  is  thus  all  the  time  present  with  the 
goods,  he  can  often  foresee  also  what  is  likely  to  hap- 
pen to  them,  and  take  the  necessary  precautions  to 
prevent  loss  or  injury  to  them. 

§  208.  Another  reason  assigned  is,  that,  although 
in  the  case  of  common  carriers  the  loss  will  be  ex- 
cused if  occasioned  by  the  act  of  God  or  the  public 
enemy,  yet  the  onus  is  upon  the  company  to  establish 
such  cause  or  loss  by  proof ;  so  that,  if  the  same  rule 
be  applied  to  telegraph  companies,  and  they  be  bound 
to  establish  this  defence  by  proof,  there  would,  in 
most  cases,  be  an  impossibility  of  making  the  proof 
that  the  loss  was  occasioned  by  the  act  of  God,  al- 
though the  fact  be  so ;  for  "  a  telegraph  company, 
owing  to  innumerable  causes  which  may  disturb  the 
security  of  its  lines,  would  be  as  often  open  to  liabil- 
ity because  of  the  providence  of  God  unknown  to  it, 
as  because  of  any  other  reason ; "  and  hence,  in  the 
opinion  of  the  Court,  this  of  itself  should  prevent 
the  application  of  this  stern  requirement,  in  case  of 
common  carriers,  to  telegraph  companies. 

§  209.  The  Court  further  held,  that  as  the  statute 
under  which  the  company  were  authorized  to  do  busi- 
ness allowed  them  to  "receive  despatches  from  and 
for  other  telegraph  lines  and  associations,  and  from 
and  for  any  individual,  for  transmitting  despatches  as 
established  by  the  rules  and  regulations  of  such 
telegraph  line,"  etc.,  they  were  authorized  to  con- 
tract, not  by  force  of  any  common  law  duty  or  obli- 
gation, but  in  accordance  with  their  rides  and  regu- 
lations. Similar  language  is  used  in  the  various  tele- 

[232] 


CHAP.  IV.]  IN    RELATION    TO   MESSAGES.  §  210 

graph  statutes  of  England,  Canada,  and  the  American 
States.1 

§  210.  The  Supreme  Court  of  Pennsylvania,  in 
1860,  in  an  action  by  the  receiver  of  a  message,2 
negatived  the  idea  that  telegraph  companies  are  com- 
mon carriers  in  the  sense  and  to  the  extent  of  being 
insurers  for  the  safe  delivery  of  what  is  intrusted  to 
them  ;  but  placed  their  responsibility,  whatever  it  may 
be,  upon  the  public  nature  of  their  employment,  and 
the  contract  under  which  the  particular  duty  is  as- 
sumed. This  was  an  action  by  the  receiver  of  the 
message,  who  was  thereby  directed  to  send  "  two 
hundred  bouquets,"  the  message,  as  written,  being 
"  two  hand  bouquets."  The  liability  of  the  company 
to  Le  Hoy,  the  sender,  was  not  denied,  nor  was  it 
conceded  ;  but  the  fact  that  Dryburg  was  receiver  of 
the  message  was  relied  on  as  sufficient  to  defeat  the 
action.  The  Court,  however,  held  that  a  telegraph 
company  is  the  common  agent  of  the  parties  at  either 
end  of  the  line ;  so  that  this  action  could  be  main- 

1  We  note  our  dissent  from  this  view,  and  cite  the  construction  placed 
on  the  words  "  according  to  the  regulations  "  by  the  Court  in  Ellis  v. 
Am.  Teleg.  Co.,  13  Allen,  226:  "This  provision  does  not  confer  the 
right  to  impose  such  conditions  or  restrictions  in  the  mode  of  conducting 
the  business  as  the  self-interest  or  caprice  of  owners  and  conductors  of 
telegraphs  may  dictate ;  but  only  those  which  are  reasonable  and  proper, 
in  view  of  the  nature  of  the  business  and  the  risks  and  responsibilities 
which  it  involves,  and  the  necessity  of  securing  to  the  public  due  oppor- 
tunities for  a  fair  and  reasonable  use  of  the  telegraph,  as  well  as  of 
affording  due  protection  to  the  rights  of  those  on  whom  are  imposed  the 
duty  and  burden  of  conducting  the  business  for  public  accommodation. 
This  is  the  true  interpretation  of  the  statute ;  any  other  construction 
would  lead  to  the  result  that  the  legislature  conferred  a  power  to  estab- 
lish unreasonable  regulations  for  the  conduct  of  a  business  of  a  quasi 
public  nature,  —  a  conclusion  which  is  manifestly  absurd." 

2  The  N.Y.  &  Wash.  Teleg.  Co.  v.  Dryburg,  35  Pa.  St.  R.  298. 

[233] 


§211  EXTENT    OF    RESPONSIBILITY  [PART  II. 

tained,  especially  as  Dryburg  used  the  same  medium 
in  responding  to  the  message. 

§  211.  Woodward,  J.,  in  delivering  the  opinion  of 
the  Court,  said,  "The  wrong  of  which  the  plaintiff 
complained  consisted  in  sending  him  a  different  mes- 
sage from  that  which  they  had  contracted  with  Le 
Roy  to  send.  That  it  was  a  wrong  is  as  certain  as 
that  it  was  their  duty  to  transmit  the  message  for 
which  they  were  paid.  Though  telegraph  companies 
are  not,  like  common  carriers,  insurers  for  the  safe 
delivery  of  what  is  intrusted  to  them,  their  obliga- 
tions, so  far  as  they  reach,  spring  from  the  same 
source,  —  the  public  nature  of  their  employment, 
and  the  contract  under  which  the  particular  duty  is 
assumed.  One  of  their  plainest  duties  is  to  transmit 
the  very  message  prescribed.  No  question  arose  here 
as  to  any  statutory  privileges  inconsistent  with  the 
common  law  obligation  of  common  carriers,  as  the 
action  was  by  the  receiver  of  the  message,  who  sus- 
pected that  the  message  was  wrong,  and  asked  his 
correspondent  how  many  bouquets  he  wanted.  The 
answer  was  'two  hand  bouquets,  and  not  two  hun- 
dred.' "  But  in  the  mean  time  a  large  quantity  of  ex- 
pensive flowers  had  been  cut,  and  of  course  were  a 
loss.  The  jury  assessed  the  damages  at  one  hundred 
dollars.  The  telegraph  company  set  up  its  rule  as  to 
unrepeated  messages,  and  relied  on  McAndrew's  and 
Camp's  cases  in  defence ;  but  the  revising  Court  ad- 
•  judged  it  to  be  a  case  of  misfeasance,  and  sustained 
the  verdict.  This  would  probably  have  been  the 
result  if  an  express  company  or  any  common  carrier 
had  been  defendant.  Indeed,  the  question  of  the 

[234] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  212 

extent  of  original  responsibility  was  not  necessarily 
involved,  and  it  was  alluded  to  only  by  way  of  nar- 
rowing the  case  down  to  the  precise  point  in  judg- 
ment, and  in  answer  to  argument  of  counsel,  who 
insisted  that  the  company  was  not  an  insurer. 

§  212.  In  Louisiana,  the  doctrine,  that  they  are  not 
to  be  held  to  the  extraordinary  responsibility  of  com- 
mon carriers,  is  announced  in  the  case  of  Shields  v. 
The  Washington  &  New  Orleans  Telegraph  Com- 
pany.1 The  decision  in  this  case  is  rested  upon  still 
another  ground ;  viz.,  that  the  message  in  this  instance 
had  no  appreciable  value.  The  Court  held  that  it  was 
unreasonable  to  apply  the  doctrine  which  is  applied 
to  common  carriers  to  a  case  where  the  message  did 
not  disclose  on  its  face  its  character  or  importance  ; 
and  such  was  the  character  of  the  message  in  the 
case  before  the  Court.  The  despatch  read,  "  Oats 
fifty-six,  bran  one  ten,  corn  seventy-three,  hay  twenty- 
five."  The  Court  say,  "  The  person  who  sent  the 
despatch  made  no  explanation  to  the  operator,  and 
without  explanation  how  could  the  operator  know 
whether  the  numbers  in  question  referred  to  dollars 
and  cents  or  to  bushels  and  bales  1.  Again,  how 
could  the  operator  know  whether  the  said  despatch 
conveyed  an  order  to  purchase,  or  an  account  of  sales'? 
And  if  he  was  bound  to  infer  the  former,  what  infor- 
mation did  the  despatch  convey  to  his  mind  of  the 
extent  of  the  order1? 

"  The  meaning  of  the  despatch  was  a  secret  to  all 
but  the  parties  corresponding.  Under  the  circum- 
stances, the  value  of  the  message  was  inappreciable, 

1  11  American  Law  Journal,  311. 

[235] 


§  213  EXTENT    OF    RESPONSIBILITY  [PART  II. 

and  the  telegraph  company  had  no  means  of  know- 
ing the  extent  of  the  responsibility  which  ought  to 
be  involved  in  the  correct  transmission,  upon  the 
principles  contended  for  by  the  counsel  for  the  plain- 
tiff." 

§  213.  Various  courts  in  New  York  have  denied 
that  telegraph  companies  are  common  carriers.  In 
March,  1866,  Judge  Daly  delivered  an  opinion  in  the 
Court  of  Common  Pleas,  in  the  case  of  Edward  l)e 
Rutte  v.  The  New  York,  Albany,  &  Buffalo  Electric 
Magnetic  Telegraph  Company,1  using  this  language : 
"  The  next  question  that  arises  is  as  to  the  nature 
and  exact  extent  of  the  responsibility  which  the  law 
should  impose  upon  those  who  engage  in  the  public 
business  of  transmitting  intelligence  from  one  place  to 
another,  by  means  of  the  electric  telegraph,  whether 
considered  with  reference  to  their  liability  upon  con- 
tract, or  for  injuries  brought  about  by  their  negligence. 
The  law  upon  this  subject  is  yet  undefined,  for  the 
business  is  of  recent  origin,  and  the  cases  which  have 
arisen  are  comparatively  few.  I  have  already  pointed 
out  one  distinguishing  feature,  that,  though  pursued 
for  reward,  it  is  designed  for  the  general  convenience 
of  the  public. 

"  Like  the  business  of  common  carriers,  the  interests 
of  the  public  are  so  largely  incorporated  with  it,  that 
it  differs  from  ordinary  bailments,  which  parties  are 
at  liberty  to  enter  into,  or  not,  as  they  please.  In  this 
State  it  is  made  the  duty  of  telegraph  companies  by 
statute  to  transmit  despatches  from  and  for  any  indi- 
viduals with  impartiality  and  good  faith,  upon  the 

1  Court  of  Common  Pleas,  1  Daly,  547. 
[236] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  214 

payment  of  their  usual  charges ;  a  duty  which  would 
arise  from  the  nature  of  their  business,  even  if  there 
were  no  statute  upon  the  subject.  Common  carriers 
are  held  to  the  responsibility  of  insurers  for  the  safe 
delivery  of  the  property  intrusted  to  their  care,  upon 
grounds  of  public  policy,  to  prevent  frauds  or  col- 
lusion with  them,  and  because  the  owner,  having 
surrendered  up  the  possession  of  his  property,  is 
generally  unable  to  show  how  it  was  lost  or  injured.1 
These  reasons,  which  are  the  ones  usually  assigned  for 
the  extraordinary  responsibility  of  common  carriers, 
cannot  be  regarded  as  applicable  to  the  same  extent 
to  telegraph  companies  ;  nor  are  there  any  reasons,  in 
my  judgment,  why  they  should  be  held  in  any  extent 
to  the  responsibility  of  insurers  for  the  correct  trans- 
mission and  delivery  of  intelligence." 

§  214.  The  same  view  is  taken  by  the  Supreme 
Court  of  New  York,  in  Breese  &  Mumford  v.  The 
United  States  Telegraph  Co.2  The  Court  said  (John- 
son, J.),  "  I  cannot  refrain  from  observing  here  that  the 
business  in  which  the  defendant  is  engaged,  of  trans- 
mitting ideas  only,  from  one  point  to  another,  by  means 
of  electricity  operating  upon  one  extended  and  insu- 
lated wire,  and  giving  them  expression  at  the  remote 
point  of  delivery  by  certain  mechanical  sounds,  or  by 

1  Riley  v.  Herne,  5  Bing.  217.  Thomas  v.  The  Boston  &  Providence 
R.R.  Corp.,  10  Met.  (Mass.),  476.  Caggs  v.  Bernard,  1  Ld.  Raym.  909, 
and  Appendix. 

4  45  Barb.  274 ;  where  it  is  denied  that  telegraph  companies,  as  do 
common  carriers,  innkeepers,  and  the  like,  owe  any  duty  to  the  public 
irrespective  of  their  engagements  in  particular  instances ;  and  that  their 
liability  in  respect  of  the  accurate  transmission  and  faithful  delivery  of 
messages  rests  entirely  in  contract.  We  have  had  occasion  to  dissent 
from  the  view  that  they  owe  no  duty  to  the  public.  See  ante,  §  123. 

[237] 


§  214  EXTENT    OF    RESPONSIBILITY  [PART  II. 

marks  or  signs  indented,  which  represent  words  or 
single  letters  of  the  alphabet,  is  so  radically  and  es- 
sentially different,  not  only  in  its  nature  and  char- 
acter, but  in  all  its  methods  and  agencies,  from  the 
business  of  transporting  merchandise  and  material 
substances  from  place  to  place  by  common  carriers, 
that  the  peculiar  and  stringent  rules  by  which  the 
latter  is  controlled  and  regulated,  can  have  very  little 
just  and  proper  application  to  the  former;  and  all 
attempts  heretofore  made  by  courts  to  subject  the  two 
kinds  of  business  to  the  same  legal  rules  and  liabilities 
will  in  my  judgment  sooner  or  later  have  to  be  aban- 
doned, as  clumsy  and  indiscriminating  efforts  and  con- 
trivances to  assimilate  things  which  have  no  natural 
relation  or  affinity  whatever,  and  at  best  but  a  loose 
and  mere  fanciful  resemblance.  The  bearer  of  written 
or  printed  documents  and  messages  from  one  to  an- 
other, if  such  was  his  business  or  employment,  might 
very  properly  be  called  and  held  a  common  carrier, 
while  it  would  obviously  be  little  short  of  an  absurdity 
to  give  that  designation  or  character  to  the  bearer  of 
mere  verbal  messages,  delivered  to  him  by  mere  signs 
or  speech,  to  be  communicated  in-  like  manner.  The 
former  would  be  something  which  is  or  might  be  the 
subject  of  property,  capable  of  being  lost,  stolen,  or 
wrongfully  appropriated  ;  while  the  latter  would  have 
nothing  in  the  nature  of  property  which  could  be 
converted  or  destroyed,  or  form  the  subject  of  larceny 
or  of  tortious  caption  or  appropriation,  even  by  the 
'  king's  enemies.' "  1 

1  See  argument  of  counsel  and  opinion  for  numerous  references,  45 
Barb.  274. 
[238] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  216 

We  do  not  find  that  this  point  has  been  adjudged 
in  the  Court  of  Errors  and  Appeals  of  the  State  of 
New  York. 

§  215.  In  the  Supreme  Court  of  Indiana,  in  1864, 
it  was  adjudged  in  a  proceeding  under  the  statute  in 
that  State,  regulating  telegraph  companies,1  that  they 
may  defend  in  a  suit  for  the  penalty,  by  showing  that, 
after  receiving  the  message,  the  same  could  not  be  sent, 
by  reason  of  some  derangement  of  the  wires,  or  that  the 
despatch  was  postponed,  in  consequence  of  the  trans- 
mission of  intelligence  of  general  and  public  interest,  or 
communications  for  and  from  officers  of  justice,  such 
despatches  having  priority  by  the  terms  of  the  statute.2 

This  despatch  was  a  request  for  witnesses  to  come 
by  the  night  train,  and  it  was  not  sent  in  time. 

§  216.  The  company  defended  upon  two  grounds: 
that  the  sender  must  show  that  the  message  was  not 
sent  with  impartiality  and  in  good  faith  and  in  the 
order  of  time  in  which  it  was  received ;  and  that,  in 
the  absence  of  this  proof,  mere  negligence  was  not 
a  sufficient  ground  for  recovery  under  the  statute ; 
admitting,  however,  that  the  company  would  be  liable 
for  damages  in  the  proper  action  for  negligence.  The 
jury  found  that  the  message  was  received  in  time  by 
the  operator,  who  said  it  could  be  forwarded  imme- 
diately ;  and  on  this  the  Court  say  the  defendant  is 
liable,  unless  subsequent  to  that  time  the  wires  be- 
come damaged,  or  privileged  messages  caused  the 
postponement. 

1  1  G.  &H.  611,  sec.  1. 

2  Western  Union  Telegraph  Co.  v.  Ward,  23  Ind.  K.  377.     Also  see 
Appendix,  title  "Indiana." 

[239] 


§  217  EXTENT    OF    RESPONSIBILITY  [PART  II. 

It  will  be  seen  that  the  statute  gives  preference  to 
public  newspaper  or  general  news  despatches,  but 
does  not  mention  derangement  of  the  wires  as  a 
justification  for  delay.  This  is  only  one  of  many 
causes  which  might  authorize  a  verdict  for  a  com- 
pany in  a  penal  action.  Delay  by  common  car- 
riers of  goods  may  be  accounted  for  by  accidents 
which  ordinary  prudence  and  foresight  could  not 
guard  against ;  but  they  must  go  on  with  dili- 
gence to  delivery,  as  soon  as  the  obstacles  can  be 
removed. 

And  if  the  action  now  under  consideration  had 
rested  upon  a  question  of  negligence  alone,  and  if  it 
should  be  held  that  the  defendant  was  a  common  car- 
rier, the  defence  suggested  by  the  Court  would  have 
been  equally  available. 

§  217.  The  case  of  the  Western  Union  Telegraph 
Co.  v.  Carew  was  lately  decided  in  the  Supreme 
Court  of  Michigan,1  when  the  point  now  being 
treated  of  was  adjudged  as  follows :  "  We  are  all 
agreed  that  telegraph  companies,  in  the  absence  of 
any  provision  of  statute  imposing  such  liabilities, 
are  not  common  carriers,  and  that  their  obligations 
and  liabilities  are  not  to  be  measured  by  the  same 
rules  ;  that  they  do  not  become  insurers  against  all 
errors  in  the  transmission  or  delivery  of  messages, 
except  so  far  as  by  their  rules  and  regulations,  or 
by  contract  or  otherwise,  they  choose  to  assume  that 
position,  or  hold  themselves  out  as  such  to  the  public, 
or  to  those  who  employ  them.  The  statute  of  this 
State  authorizing  such  companies,  and  to  some  ex- 

1  15  Mich.  R.  525. 
[240] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  220 

tent  prescribing  their  duties   and  liabilities,  imposes 
no  such  liability.1 

§  218.  "  Impartiality  and  good  faith  are  the  chief,  if 
not  the  only,  obligations  required  by  the  statute,  so  far 
as  relates  to  the  question  here  involved.  Beyond  these 
statute  requirements,  their  obligations  must  be  fixed 
by  considerations  growing  out  of  the  nature  of  the 
business  in  which  they  are  engaged,  the  character  of 
the  particular  transactions  which  may  arise  in  the 
course  of  their  business,  and  the  application  of  the  prin- 
ciples of  justice  and  public  policy  recognized  alike  by 
common  sense  and  the  common  law.  The  statutes  of 
the  other  States  in  reference  to  this  branch  of  business 
are  in  the  main  substantially  like  our  own. 

§  219.  "  Telegraph  companies,  like  common  carri- 
ers, it  is  true,  exercise  a  public  employment ;  and  the 
former  are  bound  to  send  messages  for  those  who  ap- 
ply, and  are  ready  to  pay  the  usual  or  settled  charges, 
as  the  latter  are  bound  to  transport  goods  for  those 
who  seek  their  services  upon  similar  terms ;  and  doubt- 
less the  same  rules  for  securing  impartiality  would  ap- 
ply to  both,  except  as  modified  by  statute.  (See  section 
15,  of  chapter  70,  above  cited.)  But  beyond  this,  as 
relates  to  the  actual  transportation  of  goods  in  the 
one  case,  and  the  transmission  of  ideas  in  the  other, 
there  is,  in  the  nature  of  things  and  the  different 
means  and  agencies  employed,  but  very  little  substan- 
tial resemblance  ;  and  any  analogy  must  be  more  fan- 
ciful than  real,  and  likely  to  lead  to  error  and  injus- 
tice. . .  . 

§  220.  "  But  it  would  be  extremely  unjust,  and,  con- 

2  Comp.  L.  c.  70. 

16  [241] 


§  221  EXTENT    OF    RESPONSIBILITY  [PART  II. 

sidering  the  small  amount  of  compensation  for  sending 
a  message,  would  effectually  put  an  end  to  this  method 
of  correspondence,  to  hold  them  absolutely  liable  as 
insurers  for  the  entire  correctness  of  all  messages 
transmitted,  or  to  hold  them  responsible  for  all 
damages  which  might  accrue  from  an  error,  especially 
when  only  a  single  transmission,  without  repeating,  is 
relied  upon  or  paid  for;  or  to  deny  them  all  power, 
by  rules  and  regulations  or  notices,  to  limit  their  lia- 
bility even  in  the  case  of  repeated  messages.  And  it 
would  be  equally  unreasonable  to  require  them  to  re- 
peat a  message  when  they  are  paid  only  for  a  single 
transmission. 

§221.  "And  while,  in  settled  weather,  or  when 
the  normal  condition  or  operation  of  the  electrical 
currents  is  not  affected  by  any  temporary  or  local  dis- 
turbance, a  single  transmission  by  a  skilful  operator 
may  be  relied  upon,  as  a  general  rule,  and  for  matters 
of  comparatively  small  importance ;  yet  it  must  be 
well  known  to  most  men  (if  not  to  all  who  have  such 
a  degree  of  intelligence  as  to  be  likely  to  resort  to  this 
mode  of  correspondence)  that  the  electrical  state  of 
the  atmosphere  is  liable  to  sudden  and  violent  changes, 
extending  over  areas  of  greater  or  less  extent,  which 
cannot  be  foreseen  or  guarded  against,  and  which 
materially  affect  the  currents  transmitted  from  a  battery 
along  the  wires,  and  for  a  time  render  the  operation  of 
the  instruments  uncertain  and  unreliable ;  that  these 
disturbances  often  affect  distant  portions  of  the  line  or 
of  a  connecting  line,  while  their  influence  may  be 
scarcely  felt,  or  not  felt  at  all,  at  the  station  from  which 
a  message  is  sent,  and  that  therefore,  to  insure  entire 

[242] 


CHAP.  IV.]  IN   RELATION    TO    MESSAGES.  §  222 

and  uniform  correctness,  the  only  safe  method  is  to 
have  the  message  verified  by  repeating  it  back  to  the 
station  from  which  it  was  sent." 

§  222.  This  was  an  action  of  assumpsit  brought  by 
the  defendant  in  error,  to  recover  damages  for  the 
failure,  on  the  part  of  plaintiff  in  error,  to  transmit 
correctly  a  certain  telegraph  message  from  Detroit  to 
Baltimore.  The  charges  were  paid  to  Baltimore, 
though  the  lines  of  plaintiff  in  error  only  extended 
to  Philadelphia.  The  message  was  correctly  sent 
to  Philadelphia,  and  delivered  there  to  the  agent  of 
the  Baltimore  line.  The  error  occurred  between 
that  point  and  Baltimore,  and  consisted  in  changing 
"  forty,"  to  "  four"  cases.  The  company,  by  its  regu- 
lations, disclaimed  responsibility  for  any  error  or  delay 
in  the  transmission  or  delivery,  or  for  the  non-delivery 
of  any  urepeated  message  beyond  the  amount  paid  for 
sending  the  same,  unless  specially  insured ;  and  stipu- 
lated against  all  responsibility  for  error  or  neglect  of 
any  other  company  along  whose  lines  the  message 
might  be  sent.  This  was  an  unrepeated  message.  In 
passing  upon  these  limitations  of  responsibility  the 
Court  further  said,  "  The  regulation,  therefore,  of  most, 
if  not  all,  telegraph  companies  operating  extensive 
lines,  allowing  messages  to  be  sent  by  single  transmis- 
sion for  a  lower  rate  of  charge,  and  requiring  a  larger 
compensation  when  repeated,  must  be  considered  high- 
ly reasonable,  giving  their  customers  the  option  of 
either  mode,  according  to  the  importance  of  the  mes- 
sage, or  any  other  circumstance  which  may  affect  the 
question.  And  as  the  compensation  ought  always  to 
be  in  proportion  to  the  risk  assumed,  the  provision  in 

[243] 


§  225  EXTENT    OF    RESPONSIBILITY  [PART   II. 

these  regulations  in  reference  to  insurance  must  be 
regarded  also  as  just  and  reasonable.1 

§  223.  "  As  the  statute  of  this  State  and  of  the 
other  States,  so  far  as  we  have  examined  them  re- 
quires them  to  receive  despatches  from  and  for  other 
telegraph  lines,  and  to  transmit,  etc.,  it  is  but  reason- 
able, when  the  message  is  to  pass  over  the  lines  of 
more  than  one  company,  that  each  should  be  respon- 
sible for  only  the  errors  occurring  on  its  own  line,  and 
the  receipt  of  the  money  by  the  company  first  trans- 
mitting the  message,  as  the  agent  of  the  other  lines, 
is  much  more  for  the  convenience  of  the  person  send- 
ing the  message,  than  for  that  of  the  company." 

§  224.  The  case  of  Ellis  v.  American  Teleg.  Co.2 
was  in  tort  for  error  in  the  transmission  of  this  mes- 
sage:  "  City  Cambridge  ten  (10)  men,  one  hundred 
twenty-five  dollars."  Meserve  wrote  this  on  the  com- 
pany's printed  blank,  and  paid  for  a  single  transmis- 
sion. Ellis  received  a  similar  blank  containing  these 
words:  "City  Cambridge  ten  (10)  men,  one  hundred 
seventy-five  (175)  dollars."  The  error  in  the  sum, 
made  by  the  company's  agent,  was  alone  the  ground 
of  complaint.  The  message  was  an  offer  of  §125  per 
man,  and  the  change  made  it  an  offer  of  §175  per 
man.  Special  damages  were  not  shown.  Verdict  for 
plaintiff,  with  §40  damages. 

§  225.  After  disposing  of  some  preliminary  matters, 
the  Court  (Bigelow,  C.J.)  said,  "  We  are  then  to  look 
into  the  provisions  of  the  statute  to  ascertain  how  far 

1  It  is  suggested  elsewhere  (§  104),  that  this  is  only  a  tariff  of  rates; 
and  its  reasonableness,  in  the  absence  of  contract,  is  a  question  for  the 
jury,  in  a  verdict  for  services  rendered  by  the  company. 

*  13  Allen,  226. 
[244] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  225 

they  regulate  and  control  the  relative  rights  and  lia- 
bilities of  the  parties  to  this  suit.  The  only  important 
clause  bearing  on  the  questions  saved  by  the  excep- 
tions is  found  in  the  tenth  section  of  the  chapter  of 
the  General  Statutes  already  cited.  It  is  in  these 
words :  '  Every  company  shall  receive  despatches 
from  and  for  other  telegraph  lines,  companies,  and  as- 
sociations, and  from  and  for  any  person ;  and,  on  pay- 
ment of  the  usual  charges  for  transmitting  despatches 
according  to  the  regulations  of  the  company,  shall 
transmit  the  same  faithfully  and  impartially.'  The 
leading  feature  in  this  enactment  is,  that  it  in  effect 
takes  the  business  of  conducting  and  managing  a  line 
of  electric  telegraph  within  this  Commonwealth  out 
of  the  class  of  ordinary  private  occupations,  and 
makes  it  a  quasi  public  employment,  to  be  carried  on 
with  a  view  to  the  general  benefit  and  for  the  accom- 
modation of  the  community,  and  not  merely  for  private 
emolument  and  advantage.  Under  this  provision, 
an  owner  or  manager  of  such  a  line  becomes  to  a 
certain  extent  a  public  servant  or  agent.  He  is 
bound,  under  a  heavy  penalty,  to  the  due  and  faithful 
execution  of  the  service  which  he  holds  himself  out 
as  ready  to  perform.  He  cannot  refuse  to  receive  and 
forward  despatches  ;  nor  can  he  select  the  persons  for 
whom  he  will  act.  He  cannot  transmit  messages  at 
such  times  or  in  such  order  as  he  may  deem  expedi- 
ent. He  is  required  to  send  them  for  every  person 
who  may  apply,  at  a  usual  or  uniform  tariff  or  rate, 
without  any  undue  preference,  and  according  to  estab- 
lished regulations  applicable  to  all  alike.  There 
can  be  no  doubt  that,  in  view  of  the  nature  of  the 

[245] 


§  225  EXTENT    OF    RESPONSIBILITY  [PART  II. 

business,  these  requisitions  are  just  and  expedient. 
They  certainly  tend  to  prevent  monopoly  and  exclu- 
sive privileges,  and  to  secure  to  the  public  an  equal 
enjoyment  of  the  benefits  arising  from  this  new  method 
of  inter-communication  between  distant  points.  In 
some  respects,  they  assimilate  the  duties  and  obliga- 
tions incident  to  the  employment  to  those  which  the 
law  attaches  to  that  of  common  carriers.  But  it  is  a 
mistake  to  say  that  the  extent  or  degree  of  responsi- 
bility is  the  same.  There  is  nothing  in  the  statute 
which  gives  countenance  to  the  suggestion  urged  by 
the  plaintiffs  counsel,  that  owners  or  conductors  of  tele- 
graphs are  bound  to  warrant  or  insure  a  correct  trans- 
mission of  the  messages  which  they  undertake  to  send. 
Nor  would  it  be  just  or  reasonable  to  hold  them  to 
such  a  standard  of  diligence.  The  reasons  of  policy 
and  expediency  on  which  the  rule  of  the  common 
law  is  founded,  which  imposes  on  carriers  of  goods 
a  liability  for  all  losses  not  caused  by  the  act  of 
God  or  the  public  enemy,  do  not  apply  to  the  business 
of  transmitting  messages  by  means  of  the  electric 
telegraph.  Carriers  are  intrusted  with  the  manual 
possession  of  the  property  committed  to  their  care. 
While  in  their  custody  it  is  wholly  out  of  the  control 
and  supervision  of  its  owner.  The  identity  of  the  ar- 
ticle which  they  received  with  that  which  they  de- 
livered cannot  be  mistaken.  By  the  use  of  a  proper 
degree  of  diligence  and  care,  such  as  is  necessary  to 
the  safety  of  the  goods  in  their  charge,  -they  can  guard 
against  their  loss  arising  from  any  cause  except  such 
as  from  the  nature  of  things  are  beyond  their  con- 
trol ;  while  the  danger  of  fraud  and  the  opportunity 

[246] 


CHAP.  IV.]  IN    RELATION    TO   MESSAGES.  §  226 

for  its  practice  by  those  who  have  the  exclusive  and 
absolute  custody  and  control  of  property  for  carriage, 
render  it  expedient  and  necessary  to  hold  them  to  the 
strictest  accountability  for  its  safe  transportation  and 
delivery. 

§  226.  "  But  the  trust  reposed  in  the  owner  or  con- 
ductor of  a  line  of  telegraph  is  of  a  very  different 
character.  No  property  is  committed  to  his  hands. 
He  has  no  opportunity  to  violate  his  trust  by  his  own 
acts  of  embezzlement,  or  by  his  carelessness  to  suffer 
others  by  means  of  larceny  or  fraud  to  despoil  his 
bailors  of  their  property.  Nor  can  it  be  at  all  times 
in  the  power  of  an  operator,  however  careful  or 
skilful  he  may  be,  to  transmit  with  promptness  or 
accuracy  the  messages  committed  to  him.  The  un- 
foreseen disarrangement  of  electrical  apparatus ;  a 
break  in  the  line  of  communication  at  an  intermediate 
point  not  immediately  accessible,  occasioned  by  acci- 
dent or  by  wantonness  or  malice  ;  the  imperfection  ne- 
cessarily incident  to  the  transmission  of  signs  or  sounds 
by  electricity  which  sometimes  renders  it  difficult  if 
not  impossible  to  distinguish  between  words  of  like 
sound  or  orthography,  but  different  signification, — 
these  and  other  similar  causes,  the  effect  of  which 
the  highest  degree  of  care  cduld  not  prevent,  make  it 
impracticable  to  guard  against  errors  and  delays  in  send- 
ing messages  to  distant  points.  To  these  hinderances 
and  embarrassments  in  the  conduct  and  management 
of  the  business  are  to  be  added  the  mistakes  and  mis- 
apprehensions which  will  unavoidably  take  place, 
however  vigilant  and  careful  the  operator  may  be  in 
reading  and  correctly  understanding  the  messages  to 

[247J 


§  227  EXTENT    OF    RESPONSIBILITY  [PART  II. 

be  sent,  and  interpreting  them  at  the  point  of  their 
reception,  as  they  are  transmitted  by  the  arbitrary 
signs  or  sounds  which  are  the  substitute  for  the  writ- 
ten or  spoken  words.  It  would  be  manifestly  unrea- 
sonable and  unjust  to  annex  to  a  business  of  such  a 
nature  the  liability  of  a  common  carrier,  or  to  require 
that  those  engaged  in  it  should  assume  the  risk  of 
loss  and  damage  rising  from  causes  the  operation 
of  which  they  could  neither  prevent  or  control."  .  .  . 

§  227.  After  setting  forth  that  they  are  not  exempt 
from  all  responsibility  for  want  of  fidelity  and  care ; 
that  they  cannot  protect  themselves  against  the  con- 
sequences of  .fraud  or  gross  negligence,  the  Court  go 
on  to  say,  — 

"  But  we  need  not  have  recourse  to  these  familiar 
and  well-settled  principles  of  the  common  law,  in 
order  to  establish  the  right  of  the  owners  and 
conductors  of  telegraphs  to  make  rules  and  regu- 
lations by  which  to  define  and  limit  their  duties  and 
obligations  in  the  transaction  of  the  business  which 
they  assume  to  carry  on.  This  right  is  clearly  recog- 
nized and  affirmed  by  the  statute  already  cited.  By 
that,  corporations,  associations,  and  individual  owners 
of  lines  of  telegraph,  doing  business  within  this  Com- 
monwealth, are  only  required  to  transmit  despatches 
4  according  to  the  regulations '  which  they  may  estab- 
lish. It  is  hardly  necessary  to  say,  that  this  provision 
does  not  confer  the  right  to  impose  such  conditions 
or  restrictions  in  the  mode  of  conducting  the  business 
as  the  self-interest  or  caprice  of  owners  and  con- 
ductors of  telegraphs  may  dictate ;  but  only  those 
which  are  reasonable  and  proper,  in  view  of  the 

[248] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  228 

nature  of  the  business,  and  the  risks  and  responsi- 
bilities which  it  involves,  and  the  necessity  of  securing 
to  the  public  due  opportunities  for  a  fair  and  reason- 
able use  of  the  telegraph,  as  well  as  of  affording  due 
protection  to  the  rights  of  those  on  whom  are  imposed 
the  duty  and  burden  of  conducting  the  business  for 
public  accommodation.  This  is  the  true  interpre- 
tation of  the  statute.  Any  other  construction  would 
lead  to  the  result,  that  the  legislature  conferred  a 
power  to  establish  unreasonable  regulations  for  the 
conduct  of  a  business  of  a  quasi  public  nature,  —  a 
conclusion  which  is  manifestly  absurd. 

§  228.  "  We  are  then  brought  to  the  real  question 
on  which  the  decision  of  this  case  must  depend ;  and 
that  is,  whether  the  rule  on  which  the  defenantsd 
relied  in  defence  of  the  plaintiff's  claims  is  a  just  and 
reasonable  one,  such  as  they  had  a  right  to  prescribe, 
and  by  which  the  plaintiff  was  bound  in  the  reception 
of  the  message  which  they  transmitted  to  him.  Upon 
this  point  we  can  entertain  no  doubt.  We  are  not 
called  on  in  this  case  to  determine  whether  all  the 
conditions  and  stipulations  are  valid  and  binding 
which  were  set  forth  in  the  printed  paper  on  which 
the  message  was  written  by  the  sender,  and  which  were 
also  inserted  in  that  on  which  the  message  was  tran- 
scribed at  the  point  of  its  reception,  and  which  was 
delivered  to  the  plaintiff.  The  sole  question  here  is, 
whether  that  portion  of  the  terms  and  conditions  pre- 
scribed by  the  defendants  is  reasonable  and  valid, 
which  provides  that  the  defendants  will  not  hold 
themselves  responsible  for  errors  and  delays  in  the 
transmission  and  delivery  of  messages  unless  they  are 

[249J 


§  228  EXTENT    OF    RESPONSIBILITY  [PART  II. 

repeated ;  that  is,  sent  back  from  the  station  at  which 
they  are  received  to  that  at  which  they  were  originally 
sent,  with  the  payment  for  such  repetition  of  half  the 
usual  price  for  transmission.  In  view  of  the  risks 
and  uncertainties  attendant  on  the  transmission  of 
messages  by  means  of  electricity,  and  the  difficulties 
in  the  way  of  guarding  against  errors  and  delays  in 
the  performance  of  such  a  service,  which  have  been 
already  alluded  to,  and  also  of  the  very  extensive 
liability  to  damages  which  may  be  incurred  by  a 
failure  to  deliver  a  message  accurately,  we  think* it 
just  and  reasonable  that  the  conductor  of  a  telegraph 
should  require  that  additional  precautions  should  be 
taken  to  ascertain  the  accuracy  of  the  messages  as 
received,  at  the  request  and  expense  of  the  parties 
interested,  if  they  intend  to  hold  him  responsible  in 
damages  for  any  mistake  which  may  have  taken  place 
in  the  transmission  of  messages.  There  is  nothing  in 
this  regulation  which  tends  to  embarrass  or  hinder 
the  free  use  of  the  telegraph,  or  to  impose  on  those 
having  occasion  to  transmit  or  receive  messages  any 
onerous  or  impracticable  duty.  The  repetition  of  a 
message  may  be  unimportant.  A  mistake  in  its 
transmission  might  occasion  no  serious  damage  or 
inconvenience  to  the  parties  interested.  Whether 
it  would  do  so  or  not  would  be  within  the  knowledge 
of  the  sender  or  receiver,  rather  than  within  that  of 
the  operator  who  transmitted  it.  The  latter  could 
rarely  be  expected  to  know  what  wrould  be  the  con- 
sequences of  an  error  in  its  transmission.!  It  is 
therefore  a  most  reasonable  requisition  that  it  should 
be  left  to  those  who  know  the  occasion  and  the  sub- 

[250] 


CHAP.   IV.]  IN    RELATION    TO    MESSAGES.  §  229 

ject  of  the  message,  and  who  can  best  judge  of  the 
consequences  attendant  upon  any  mistake  in  sending 
it.  to  determine  whether  it  is  of  a  nature  to  render  a 
repetition  necessary  to  ascertain  its  accuracy,  instead 
of  throwing  this  burden  on  the  owner  or  conductor  of 
the  telegraph,  who  cannot  be  supposed  to  know  the 
effect  of  a  mistake,  or  the  consequences  in  damages 
of  a  failure  to  transmit  it  correctly. 

§  229.  "  Nor  can  we  see  any  good  reason  why,  on 
similar  grounds,  it  would  not  be  a  just  and  proper 
exercise  of  the  right  to  establish  regulations  for  the 
conduct  of  such  business,  to  require  that  persons 
transmitting  or  receiving  messages  should  make 
known  the  extent  and  nature  of  the  risk  to  be 
assumed  by  the  conductor  or  owner  of  the  telegraph, 
if,  in  case  of  failure  to  transmit  them  accurately,  a 
pecuniary  loss  would  be  involved  for  which  he  might 
be  held  liable.  By  no  other  means  could  they  be 
certain  of  obtaining  a  compensation  proportionate  to 
the  risk  to  be  assumed,  or  an  opportunity  of  exer- 
cising unusual  diligence  to  protect  themselves  against 
the  chances  of  mistake  or  miscarriage."  1 

1  Quite  similar  are  the  reasoning  and  conclusion  of  the  Court  of  Ap- 
peals of  Maryland,  in  the  case  of  Gildersleeve  v.  The  United  States  Teleg. 
Co.,  not  yet  reported.  On  this  point  it  was  said  (Alley,  J.)  :  — 

"  Then,  as  to  the  extent  that  the  appellant  can  claim  to  be  exonerated 
from  liability  under  such  terms  and  conditions  thus  incorporated  into  the 
contract.  And  in  reference  to  this  question,  it  is  to  be  observed  that  the 
message  was  not  to  be  repeated,  nor  was  there  any  special  agreement  for 
an  insurance  of  its  transmission  ancl  delivery.  It  was  sent  to  the  office  of 
the  appellant  to  take  its  turn ;  and  under  the  terms  and  conditions  to  which 
it  was  subject,  good  faith  and  due  diligence  in  despatching,  transmitting, 
and  delivering  it,  were  all  that  could  be  required.  The  appellant  could 
not,  by  rules  and  regulations  of  its  own  making,  protect  itself  against  lia- 
bility for  the  consequences  of  its  own  wilful  misconduct  or  gross  negligence, 

[251] 


§  230  EXTENT    OF    RESPONSIBILITY  [PART  II. 

§  230.  We  have  thus  presented  various  cases,  in 
the  American  courts,  in  which  this  question  has  been 
considered ;  and  have  given  copious  extracts  from  the 
opinions  of  the  judges,  in  order  that  the  reader  may 
see  the  lines  of  thought  and  argument  with  which 
the  subject  has  been  illustrated.1  The  weight  of 

or  any  conduct  inconsistent  with  good  faith,  nor  has  it  attempted  by  its 
rules  and  regulations  to  afford  itself  such  exemption.  It  was  bound  to  use 
due  diligence,  but  not  to  use  extraordinary  care  and  precaution.  The  ap- 
pellee, by  requiring  the  message  to  be  repeated,  could  have  assured  him- 
self of  its  despatch  and  accurate  transmission  to  the  other  end  of  the  line  if 
the  wires  were  in  working  condition  ;  or,  by  special  contract  for  insurance, 
could  have  secured  himself  against  all  consequences  of  non-delivery.  He 
did  not  think  proper,  however,  to  adopt  such  precaution,  but  chose  rather 
to  take  the  risk  of  the  less  expensive  terms  of  sending  his  message.  And, 
having  refused  to  pay  the  extra  charge  for  repetition  or  insurance,  we 
think  he  had  no  right  to  rely  upon  the  declaration  of  the  appellant's  agent 
that  the  message  had  gone  through,  in  order  to  fix  liability  on  the  com- 
pany. (McAndrew  ».  The  Electric  Teleg.  Co.  33  Eng.  Law  &  Eq.  R. 
187.)  If,  then,  the  appellant  despatched  the  appellee's  message  in  due 
course,  and  with  the  ordinary  care  to  secure  its  safe  and  correct  transmis- 
sion, and  was  guilty  of  no  negligence  in  regard  to  its  delivery  to  the  party 
to  whom  it  was  addressed,  the  obligation  under  the  contract  was  performed, 
and  the  onus  of  proof  was  upon  the  appellee  to  show  affirmatively  that 
there  had  been  negligence  or  want  of  good  faith,  either  in  despatching  the 
message  or  in  regard  to  its  delivery.  (N.J.  Steam  Navigation  Co.  v.  Mer- 
chants' Bank,  6  How.  U.S.  384;  Beardslee  v.  Richardson,  11  Wend. 
25;  Story  on  Bailments,  §  213.)  Negligence  of  the  appellant  is  the 
gist  of  this  action,  and,  unless  it  be  established,  there  can  be  no  recovery ; 
and  as  the  first  and  second  prayers  of  the  appellant  were  founded  upon 
this  assumption,  we  think,  when  taken  in  connection  with  the  sixth  prayer, 
that  there  was  error  committed  by  the  Court  below  in  refusing  to  grant 
them." 

1  An  article  in  the  American  Law  Review  for  July,  1868,  presents  the 
points  in  various  decisions,  and  adds,  "  We  have  now  discovered  three  dis- 
tinct classes  of  cases,  in  each  of  which  a  different  degree  of  liability  has 
been  imposed  upon  telegraph  companies.  The  first  class,  regarding  their 
employment  as  analogous  to  that  of  common  carriers  of  goods,  holds 
them  to  the  responsibility  of  insurers.  The  second  class  agreeing  with  the 
first,  so  far  as  concerns  their  employment,  assimilates  their  liability  to  that 
of  the  passenger  carrier.  And  the  third  class,  differing  in  every  respect 
[252] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  231 

opinion  is  adverse  to  holding  telegraph  companies 
to  be  common  carriers ;  but  nearly  all,  in  effect, 
hold  them  to  be  subject  to  most  of  the  rules  and 
restrictions  governing  common  carriers,  and  to  partake 
to  a  great  extent  of  their  nature:  But  it  is  to  be 
observed  that  no  Court  has  set  forth  in  its  opinion  a 
full  and  critical  examination  of  this  subject ;  and,  in 
some  instances,  the  reasoning  is  quite  unsatisfactory. 
Different  courts  have  arrived  at  similar  conclusions, 
upon  reasons  given,  which  are  not  easily  seen  to  be 
reconcilable.  These  facts,  —  want  of  uniformity  in 
the  decisions,  and  incongruity  in  the  reasoning, — 
together  with  the  vast  and  growing  interests  involved, 
will  furnish,  it  is  hoped,  a  sufficient  apology  for 
attempting  an  analysis  of  the  facts  and  principles 
upon  which  the  true  doctrine  rests. 

§  231.  The  public  are  more  concerned  to  know 
what  services  telegraph  companies  will  undertake  to 
perform,  than  the  modes  of  performance.  A  commis- 
sioner of  patents  would  subject  their  agents  and 
instruments  to  a  scientific  test,  and  satisfy  himself  as 
to  the  actual  merits  of  a  new  process,  or  as  to  the 
relative  value  of  the  old  and  new  agencies,  and  issue 
patents  to  the  deserving  inventor.  A  purchaser  of 

from  the  others,  regards  their  employment  as  a  mere  agency,  and  holds 
them  responsible  only  for  the  want  of  ordinary  care  and  diligence  (p. 
627). 

Chief-Justice  Redfield  has  a  chapter  upon  this  subject  in  the  late  edi- 
tion of  his  valuable  treatise  upon  the  Law  of  Railways.  He  cites  Camp's 
case,  2  Met.  (Ky.)  164,  as  containing  as  correct  a  statement  of  the  rule  as 
may  be  found  in  any  of  the  cases  (vol.  2,  §  189  &,  subd.  14). 

He  also  says,  repetition  of  the  message  is  the  only  ground  upon  which 
a  company  could  be  held  responsible  as  insurers  (§  189  b,  subd.  12, 
13). 

[253] 


§  232  EXTENT    OF    RESPONSIBILITY  [PART  II. 

an  instrument  or  an  invention  would  ascertain  its 
value  by  experiment,  before  purchasing.  Legislators, 
before  granting  charters,  ought  to  satisfy  themselves 
that  the  applicants  are  capable  of  rendering  the  ser- 
vice proposed.  All  these  are  preliminary  questions 
which  do  not  concern  the  courts,  when  they  come  .*D 
ascertain  the  duties  and  responsibilities  growing  out 
of  an  engagement  to  send  and  deliver  a  message.  It 
is  not  material  to  inquire  into  the  construction  of 
batteries,  the  texture  of  wires,  modes  of  insulation,  or 
the  relative  skill  of  operators;  for  these  and  many 
other  things  are  pretermitted,  when  negotiations  have 
ended  in  the  contract.  And,  if  there  be  no  contract, 
the  law  and  the  public  nature  of  the  business  alike 
require  of  the  company  a  knowledge,  and  the  use,  of 
the  highest  improvements  in  telegraphing. 

§  232.  In  construing  the  engagements  and  in  de- 
claring the  liabilities  of  common  carriers,  it  is  need- 
less to  consider  the  perfection  or  imperfection  of 
motive  powers.  This  is  eminently  so  in  regard  to 
telegraphing.  Vast  improvements  already  made  have 
thrown  into  utter  discredit  instruments  and  appliances 
which  once  challenged  the  admiration  of  the  most 
scientific.  Possibly,  telegraphing  will  soon  be  more 
accurate  than  photographing,  and  the  result  be  a  fac- 
simile rather  than  a  rendition  of  arbitrary  points  and 
clattering  sounds,  depending  for  accuracy  upon  the 
degree  of  auricular  attention  given  by  the  operator. 
But,  however  this  may  be,  the  art  has  now  reached 
such  perfection,  that  skill  and  diligence  are  the  chief 
standards  of  success  ;  and  upon  this  basis,  telegraph 
companies  assume  to  send  messages  for  all  who  may 

[254] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  233 

employ  them.  They  know  the  hinderances  to  which 
they  are  exposed  from  natural  causes;  they  know  the 
character  of  their  employers,  and  the  ordinary  expen- 
ses and  profits  of  the  business.  In  view  of  these  facts 
they  arrange  then:  own  tariff  of  charges,  and  assert 
their  ability  to  perform  the  work.  They  have  private 
property  condemned,  and  they  establish  their  lines 
against  the  consent  of  the  owner ;  and  this  right  is 
conceded  alone  upon  the  grounds  of  public  use. 
They  are  bound  to  serve  their  customers  in  the  order 
in  which  application  is  made ;  and  to  exhaust  their 
capacity  in  the  service,  if  required.  What,  then,  is  the 
extent  of  their  responsibility  ? 

§  233.  In  answering  this  question,  it  will  be  useful 
to  make  a  clear  statement  of  what  is  done  in  sending 
a  message.  Ordinarily  it  is  written  out  and  delivered 
to  an  agent,  who  files  or  notes  it,  so  as  to  fix  its  time 
or  place  in  the  succession  of  messages  to  be  sent. 
After  being  sent,  the  paper  writing  is  filed  away,  as 
valuable  in  several  respects:  as  an  original,  by  which 
to  make  corrections,  and  as  an  instrument  of  evidence 
to  bind  the  parties  interested,  showing  the  rights  of  the 
parties  sending  and  receiving  and  transmitting  the 
message  ;  as  well  as  duties  and  obligations  connected 
with  or  growing  out  of  the  transaction,  including  the 
specific  tax  to  the  government.  This  paper,  full  of 
legal  significance,  is  thus  bailed  to  the  company.  The 
work  of  sending  or  carrying  is  exhibited  in  its  ordina- 
ry forms,  when  the  agent  takes  it  from  the  window  or 
desk  to  the  operator's  seat,  wherever  that  may  be,  far 
or  near.  It  is  then  passed  along,  it  may  be  across 
a  street,  a  State,  or  a  continent,  to  the  custody  of  the 

[255] 


§  234  EXTENT    OF    RESPONSIBILITY  [PART  II. 

next  appropriate  agent,  whose  place  is  fixed  and  cer- 
tainly known,  whose  capacity  is  guaranteed,  and  for 
whose  fidelity  the  company  is  bound. 

He  receives  and  reduces  it  to  writing,  and  it  is  then 
in  his  hands  for  the  accomplishment  of  all  the  objects, 
and  protection  of  all  the  rights,  as  designed  by  the 
bailment  in  the  first  instance.  By  contract  it  is  to  be 
the  same  as  the  original ;  and  it  is  the  same  in  its 
legal  significance. 

§  234.  When  a  message  has  thus  been  taken  off 
the  wires,  it  has  to  be  delivered  by  the  active  interven- 
tion of  an  agent,  who  moves  the  commodity,  it  may 
be  only  to  a  box  in  the  company's  office,  or  to  the 
post-office,  or,  most  usually,  to  the  party  addressed. 
Thus  it  appears  that  the  appliances  or  agencies  re- 
quired are  the  same  as  those  used  by  common  carriers, 
from  the  instant  of  reception  until  the  message  is  put 
upon  the  wires ;  and  from  the  moment  of  receiving 
at  the  other  end  of  the  line  until  its  final  delivery. 
During  the  actual  transmission  upon  the  wires,  it  is 
the  subject  of  constant  manipulation.  The  acts  of 
sending  and  of  receiving  are  strictly  contemporaneous. 
When  the  operator  sending  the  message  has  touched 
the  key  for  the  last  time,  the  work  of  the  receiver  is 
eo  instanti  completed :  there  is  nothing  more  for  him 
to  hear.  Between  the  two,  space  intervenes;  but  time 
does  not,  as  regards  each  individual  sign  or  sound  by 
which  they  are  governed.  There  is  an  actual,  un- 
ceasing propulsion  of  the  message  by  the  fluid, 
applied  and  regulated  by  the  hand  of  the  operator. 

Delays,  accidents,  and  mistakes  do  not  relieve  the 
company  from  the  duty  of  correct  transmission  and 

[256] 


CHAP.  IV.]  IN   RELATION   TO    MESSAGES.  §  236 

final  delivery.  Where  hindering  causes  intervene,  it 
should  have  the  immunity  accorded  to  it  which  is 
received  at  the  hands  of  the  courts  by  the  carrier, 
and  no  more.  It  has  the  custody  of  the  original  de- 
spatch, and  should  repeat  its  efforts  to  transmit  upon 
the  wires  until  success  has  been  attained.  In  every 
successful  transmission  it  can  be  truly  said  the  com- 
pany has  absolute  possession  and  control  of  the  mes- 
sage from  bailment  to  delivery. 

§  235.  If  any  one  should  unlawfully  deprive  the 
company  of  this  custody,  there  is  an  appropriate  rem- 
edy for  recovering  the  possession  of  the  paper  writing, 
which  is  as  much  a  chattel  as  notes,  bonds,  or  mort- 
gages. Whilst  the  message  is  in  the  mind  of  the 
operator  receiving  it  for  reduction  to  writing,  it  is  not 
the  subject  of  trespass  and  conversion,  and,  of  course, 
needs  no  such  protection. 

§  236.  The  character  of  a  chattel  thus  seems  to  be 
stamped  upon  a  message  reduced  to  writing ;  and 
when  we  consider  that  the  public  is  chiefly  interested 
in  this  form,  we  need  not  waste  time  in  elaborating 
rules  for  verbal  messages,  until  their  importance  shall 
come  to  be  known. 

The  message,  as  originally  written  and  delivered, 
always  remains  in  the  hands  of  the  company  un- 
changed ;  and  is  valuable  for  some  purpose,  until 
the  transaction  predicated  upon  it  shall  have  been  in 
all  respects  completed.  That  it  shall  be  reduced  to 
writing  at  the  other  end  of  the  line,  is  a  part  of  the 
contract ;  and  the  written  document  there  is  in  lieu 
of  the  draft  first  delivered  for  transmission,  and  is  a 
chattel  to  all  intents  and  purposes ;  and  so  remains 

17  [257] 


§  238  EXTENT    OF    RESPONSIBILITY  [PART  II. 

until  the  end  sought  shall  have  been  attained.  It 
seems  to  be  consonant  with  principle,  and  just  in 
practice,  to  hold  the  company  as  a  common  carrier 
of  these  two  papers.  The  contract  is  that  the  con- 
tents of  the  first  shall  be  delivered  to  the  party  ad- 
dressed. The  delivery  of  the  second  is  a  compliance 
with  the  company's  contract.  The  message  thus  to 
be  delivered  has  become  the  right  and  property  of 
the  party  addressed,  and  he  could  enforce  its  delivery 
by  law.  As  thus  presented  it  would  seem  to  be  an 
ordinary  case  of  letter-carrying ;  and  if  there  were 
nothing  more  to  be  considered,  doubtless  the  author- 
ities would  be  uniform  in  holding  telegraph  com- 
panies to  be  common  carriers. 

§  237.  But  there  is  a  period  of  time,  during  transmis- 
sion, when  the  message  is  not  under  manual  control  so 
perfect  as  to  be  exempt  from  possible  disturbance.  This 
has  been  the  great  obstacle  with  the  courts,  when 
asked  to  declare  telegraph  companies  to  be  common 
carriers.  In  the  case  of  Birney  v.  New  York  & 
Washington  Printing  Telegraph  Co.1  the  Court  ap- 
proves what  the  counsel  said  on  this  point,  —  That  a 
telegraph  company  cannot  be  held  as  a  common  car- 
rier, because  the  mode  of  transmission  makes  it  im- 
possible for  the  agent  to  see  what  happens  to  his 
charge,  and  to  guard  against  threatened  danger. 

§  238.  There  seems  to  be  a  want  of  accuracy  in  this 
reasoning.  Whilst  it  is  true  that  the  carrier  may 
generally  see  the  goods  in  his  charge,  at  any  time 
during  transit;  yet  his  liability  does  not  depend  on 
that  incident.  He  contracts  to  deliver  the  goods; 

1  18  Mel.  R.  341. 
[258] 


CHAP.  IV.]  IN    RELATION   TO   MESSAGES.  §  239 

and  as  a  matter  of  necessity,  as  well  as  of  protection, 
he  sends  his  agents  along.  Being  in  the  exclusive 
possession,  he  could  so  easily  appropriate  to  his  own 
use,  allow  strangers  to  do  so,  or  wink  at  their  de- 
struction, that  the  law  requires  him  to  deliver  the 
goods  unconditionally.  If  he  should  adopt  a  mode 
of  carrying  in  which  the  immediate  presence  of  an 
intelligent  agent  was  not  required,  that  would  not 
vary  his  contract  or  responsibility.  If  he  should  un- 
dertake to  deliver  letters,  and  should  use  a  carrier 
pigeon  for  the  purpose,  he  could  not  avoid  a  recovery 
of  damages  for  non-delivery,  by  proving  that  the  bird 
flew  beyond  the  range  of  his  vision.  The  books  do 
say,1  that  holding  the  carrier  as  an  insurer  is  no  hard- 
ship, because  he  has  the  goods  always  in  his  imme- 
diate custody,  or  in  sight  of  his  agents ;  but  nowhere 
do  we  find  it  held  that  he  would  not  be  so  if  the  fact 
were  otherwise.  The  obligation  to  deliver  is  the  sub- 
stantial element  in  the  contract ;  and  so  it  is  in  the 
undertaking  of  innkeepers,  and  the  like. 

§  239.  The  engagement  is  entered  into  by  the  tele- 
graph companies  in  view  of  the  fact  that  the  message 
must  pass  over  the  stipulated  space,  without  the  atten- 
dance of  any  person.  They  choose  a  subtile  fluid  for 
their  agent,  and  by  quickness  and  accuracy  beat  down 
competition.  The  very  nature  of  the  motive  power 
excludes  the  possibility  of  personal  attendance  upon 
the  transit.  As  retaining  goods  in  manual  charge, 
clearly  does  not  constitute  a  common  carrier,  so  a 
stipulation  that  a  message  shall  pass  out  of  sight,  for 

1  Angell  on  Com.  Car.§  152,  and  note  4,  §  153. 

[259] 


§  241  EXTENT    OF    RESPONSIBILITY  [PART  II. 

a  moment,  cannot  be  said  to  change  the  nature  of  an 
engagement  to  deliver  it. 

§  240.  This  responsibility  is  not  modified  by  the 
fact  that  an  intervening  furtive  operator  may  attach 
his  battery,  and  take  a  copy  of  the  message ;  for  this 
does  not  produce  change  or  delay.  It  is  a  singular 
fact  that  every  battery  in  regular  connection  along 
the  line,  gives  the  same  indications  at  the  same  in- 
stant, and  the  number  of  batteries  does  not  weaken 
the  motive  power,  nor  render  the  communication  less 
rapid  or  distinct.  Whoever  lets  the  current  on  his 
battery  may  get  the  message  ;  but  that  does  not  inter- 
fere with  the  company's  duties  of  transmission  and 
delivery.  It  is  still  true,  however,  that  the  very  nature 
of  the  business  imposes  a  high  obligation  to  secrecy. 
It  is  generally  defined  in  the  charter,  and  grave  pen- 
alties are  prescribed  for  a  violation  of  it,  —  not  merely 
as  common  carriers,  but  as  special  confidential  agents. 
This  branch  of  the  subject  is  more  fully  discussed 
elsewhere,1  in  treating  of  fiduciary  relationship. 

§  241.  It  is  assumed  in  some  of  the  cases  cited 
heretofore,  that  a  company  should  not  be  held  as  a 
common  carrier,  because  it  cannot  know  the  value  of 
the  message  sent.  We  are  not  aware  that  ignorance 
of  the  nature,  use,  or  value  of  goods  affords  any  pro- 
tection to  the  carrier  against  a  demand  for  damages 
consequent  upon  their  loss.  He  may  inform  himself 
upon  these  points  on  receiving  the  goods,  and  may 
consider  of  them  in  fixing  his  compensation ;  but  if 
he  fails  to  do  so,  he  is  bound  in  any  event  to  a  faith- 

1  See  §§  136,  137,  and  c.  9. 
[260] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  242 

ful  delivery.1  In  point  of  fact  he  seldom  knows  the 
value  of  commodities  shipped.  They  are  ordinarily 
classified  upon  the  basis  of  weight,  bulk, -and  hazard, 
without  regard  to  specific  values.  But  even  where 
there  is  a  special  stipulation  as  to  value,  usual  with 
our  modern  express  companies,  that  only  serves  to  fix 
the  measure  of  damages  in  case  of  default. 

§  242.  In  the  same  decisions  where  it  is  held  that 
telegraph  companies  are  not  common  carriers,  because 
ignorant  of  the  value  of  the  message,  it  is  conceded 
that  for  a  higher  rate  of  compensation  they  may  be 
held  under  their  rules  as  insurers ;  and  this  without 
any  information  being  imparted  to  them  as  to  value. 
Whether  they  are  bound  by  the  common  law,  or  the 
usages  of  trade,  or  by  special  contract,  their  engage- 
ment is  to  send  messages  literally  as  they  are  written. 
It  is  not  their  business  to  send  incorrect  messages ; 
nor  do  they  inquire  into  the  value  of  messages,  when 
they  offer  to  be  bound  for  their  correctness  on  delivery. 
They  charge  additional  rates  for  repeating,  but  mere 
repetition  affords  no  additional  knowledge  as  to  value. 
For  additional  work,  they  demand  additional  pay. 
It  will  not  do  to  say  that  their  fidelity  is  increased  in 
the  same  ratio  ;  for  absolute  good  faith  is  due  to  every 
employer  alike.  It  requires  no  more  skill  to  send 
one  message  than  another,  and  their  rates  for  insured 

1  "  If  any  thing  is  delivered  to  a  person  to  be  carried,  it  is  the  duty  of  the 
person  receiving  it,  to  ask  such  questions  about  it  as  may  be  necessary ; 
if  he  ask  no  questions,  and  there  be  no  fraud  to  give  the  case  a  false  com- 
plexion, on  the  delivery  of  the  parcel,  he  is  bound  to  carry  the  parcel  as 
it  is."  Walker  v.  Jackson,  10  M.  &  Welsb.  R.  168.  The  carrier  is  respon- 
sible for  the  loss,  whatever  may  be  its  value.  Angell,  Com.  Car.  §  264, 
and  note  3. 

[261] 


§  243  EXTENT    OF    RESPONSIBILITY  [PART  II. 

messages  do  not  imply  a  difference,  but  simply  this : 
that  for  more  pay  they  will  give  additional  evidence 
to  the  sender  that  his  message  has  been  correctly 
transmitted.  To  effect  this,  the  operator  at  the  other 
end  of  the  line  answers  that  he  has  received  a  mes- 
sage containing  certain  words,  which,  when  com- 
pared by  the  sender  with  the  original  message  de- 
livered for  transmission,  is  verified  or  corrected  as 
the  case  may  demand.  In  all  this  there  is  no  such 
thing  as  insurance,  in  a  technical  sense.  The  anxiety 
of  the  sender  induces  him  to  pay  for  another  message. 
He  may  be  unwilling  to  risk  the  possibility  of  negli- 
gence or  accident.  He  chooses  to  correct  errors  at 
once,  because  he  cannot  afford  to  lose  the  present 
advantage  or  gratification,  and  afterwards  rely  upon 
compensation  in  a  suit  for  damages. 

§  243.  The  company  is  equally  interested  in  know- 
ing that  the  message  has  been  correctly  transmitted, 
and  it  makes  a  fair  bargain  with  the  sender,  in  having 
the  same  message  sent  back  for  half-price.  It  thus 
procures  evidence  of  its  strict  compliance  with  the 
undertaking,  and  the  sender  is  assured  that  his  purposes 
will  be  accomplished.  Each  party  bears  half  the  ex- 
pense. If  it  should  appear  that  a  mistake  had  been 
made,  the  company  would  of  course  have  it  corrected 
in  protection  of  itself  upon  the  original  undertaking, 
and  not  in  consideration  of  the  half-price  paid  for 
the  repeated  message.  It  would  be  entitled  to  the 
benefit  of  this  repeated  message  as  an  instrument  of 
evidence  as  fully  as  the  sender,  and  would  retain  a 
copy  for  possible  use.  After  repetition,  if  it  should 
be  ascertained  that  a  mistake  had  still  supervened  so 

[262] 


CHAP.  IV.]  IN    RELATION    TO   MESSAGES.  §  244 

that  the  sender  had  been  damaged,  he  could  only  sue 
for  damages,  and  his  right  of  recovery  would  be  gov- 
erned by  the  ordinary  rules,  and  not  by  some  new  ap- 
plication of  laws  regulating  the  insurance  of  life  or 
property.  We  feel  safe  in  saying  that  there  is  no 
element  of  insurance  in  the  business  ;  there  is  nothing 
to  insure  but  their  own  fidelity.  It  is  a  matter  of 
assurance.1 

§  244.  In  this  repeated  message,  in  this  additional 
pay,  in  this  obvious  solicitude  of  both  parties,  the 
company  finds  no  index  of  precise  value.  It  is  im- 
possible for  the  operator  to  know  what  may  be  the 
peculiar  significance  of  the  words  or  letters  used ;  he 
may  not  be  able  to  tell  whether  the  employer  means 
business  or  pleasure.  Indeed,  it  is  not  his  right  or 
privilege  to  know ;  it  would  be  impertinent  for  him  to 
inquire.  The  success  of  the  enterprise  may  depend 
upon  concealment.  It  is  enough  for  him  to  know 
the  words  and  that  they  have  been  paid  for ;  because 
that  binds  him  to  skill  and  diligence  in  behalf  of  the 
employer.  Prompt  delivery  will  be  a  full  compliance 
with  the  obligation  assumed  by  the  company.  Ordi- 
nary messages  disclose  their  own  purpose,  and  the 
operator  can  place  some  estimate  upon  their  value ; 


1  A  practical  comment  upon  the  insufficiency  of  judicial  reasoning  upon 
this  matter  of  insurance,  is  to  be  found  in  the  fact  that  the  later  regu- 
lations of  various  companies  upon  this  point  require  that  a  special  contract 
shall  be  entered  into,  fixing  in  each  case  the  amount  for  which  they  will 
be  liable,  as  to  repeated  as  well  as  unrepeated  messages ;  thus  entirely 
abandoning  the  idea  of  insurance  (which  was  always  illusory),  and  mak- 
ing it  liquidated  damages  in  case  of  default.  See  the  rules  of  the  West- 
ern Union  Teleg.  Co.  15  Mich.  R.  525,  and  Ellis  v.  The  Am.  Teleg.  Co. 
13  Allen,  226. 

[2631 


§  246  EXTENT    OF    RESPONSIBILITY  [PART  II. 

but  if  he  fails  to  see  the  object  of  the  sender,  that  of 
itself  should  inspire  diligence. 

§  245.  So  much  as  to  the  company's  ignorance  of 
value.  Another  objection  of  kindred  character  has 
been  urged  against  the  highest  degree  of  responsi- 
bility, and  it  is  this :  a  message,  abstractly  consid- 
ered, has  no  appreciable  value.1 

Conceding  this,  would  not  affect  the  integrity  of 
our  argument.  Abstract  values  are  not  involved  in 
the  discussion.  It  is  conceded  that  telegraphing  is  a 
public  employment,  and  that  the  company,  by  conse- 
quence, is  bound  to  take  and  transmit  all  messages, 
upon  uniform  rates.  How,  then,  can  there  be  any 
legitimate  inquiry  as  to  their  pecuniary  value,  except 
as  affording  a  rule  for  compensation  ?  But  in  point 
of  fact,  their  sole  tests  in  this  respect  are  the  number 
of  words  in  the  despatch,  the  number  of  repetitions, 
and  the  distance  to  be  sent.  Many  of  the  chief  ob- 
jects of  telegraphing  might  be  wholly  defeated  if  the 
operator  were  permitted  to  ascertain  the  meaning  or 
value  of  the  despatches,  either  actual  or  relative. 

§  246.  In  the  case  of  McAndrew  v.  Elec.  Tel.  Co.,2 
Justice  Jervis  presented  the  point  thus :  "  Do  you 
maintain  that  the  legislature  intended  to  cast  on  the 
company,  for  2s.  6d.,  a  liability  to  £100,000  ? "  That 
is  the  whole  argument;  and  it  concedes  that  for 
2s.  6d.  the  company  would  have  been  bound  for  some 
amount  of  damages.  Nor  could  the  company  escape 
this  responsibility  by  denying  that  the  message  had 
any  value.  Such  a  plea  could  not  be  maintained  as 

1  Breese  &  Mumford  v.  The  United  States  Teleg.  Co.  45  Barb.  274. 
1  33  Eng.  Law  &  Eq.  R.  180. 
[264] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  247 

a  question  of  law  ;  nor  would  it  be  just  or  honest  for 
the  company  to  take  the  pay,  and  then  screen  itself 
from  the  consequences  of  its  own  neglect,  by  showing 
the  folly  of  the  sender.  It  is  a  question  of  contract, 
to  be  construed  in  the  light  of  the  general  law  upon 
such  subjects,  and,  as  such,  the  legislature  had  no 
intentions.  In  undertaking  to  deliver  messages  in 
ipsissima  verba,  the  company  precludes  itself  from 
denying  their  value,  and  are  bound  to  proper  dili- 
gence in  performing  their  part  of  the  contract.  For 
failure  they  are  answerable  in  damages  according  to 
the  nature  of  the  case. 

§  247.  There  is  another  striking  analogy  which 
induces  us  to  insist  upon  holding  telegraph  companies 
to  the  responsibility  of  carriers.  The  intent  to  de- 
prive the  true  owner  of  his  goods  is  a  chief  element 
in  the  definition  of  larceny.  Common  carriers  are 
bound  to  account  for  goods  intrusted  to  them,  chiefly 
because  of  the  ease  with  which  they  can  collude  with 
thieves.1 

Now,  civilization  has  so  advanced,  that  things  have 
an  appreciable  and  commerical  value  which  formerly 
was  not  available.  Books,  maps,  charts,  diagrams,  etc., 
have  a  recognized  existence  in  the  list  of  goods  and 
chattels ;  and  the  right  of  property  in  them  may  be 
secured  by  copyrights,  patents,  etc.  Their  value  has 
a  certain  permanence,  and  it  may  be  said  in  many 
cases  that  it  is  intrinsic.  But  there  are  facts  and 
information,  the  worth  of  which  depends  on  the 
time  —  the  day  or  the  hour  —  when  known  or 
communicated. 

1  Jones  on  Bailments,  103. 

[265] 


§  249  EXTENT    OF    RESPONSIBILITY  [PART  II. 

§  248.  If,  by  labor,  skill,  and  diligence,  a  man  shall 
come  to  know  the  state  of  the  market,  at  a  particular 
place,  and  by  transmission  to  another,  he  could  make 
a  profit,  he  is  fairly  entitled  to  the  benefit. 

To  accomplish  the  purpose,  he  intrusts  it  to  a 
telegraph  company,  specially  engaging  to  deliver  it 
within  such  time  as  will  make  it  available  to  the 
correspondent.  Thus  the  operator  becomes  possessed 
of  this  valuable  information.  If  he  should  violate 
his  duty,  and  impart  it  to  third  parties,  the  sender 
could  thus  be  defeated,  and  deprived  of  his  lawful 
gains ;  and  yet  he  could  not  prove  how  it  was  done. 
His  news,  his  commodity,  had  passed  into  the  ex- 
clusive custody  of  the  operator,  who  was  as  far 
removed  from  observation,  in  this  instance,  as  a 
common  carrier  could  be  in  any  possible  shipment  of 
goods.  Bad  faith  may  be  as  injurious  in  one  case  as 
in  the  other.  The  carrier,  by  collusion  with  the 
robber,  deprives  the  owner  of  his  chattel ;  the 
operator,  by  precisely  the  same  means,  may  sell  the 
information  to  speculators,  or  to  any  interested  party, 
and  thus  entirely  defeat  the  object  of  the  bailment. 
For  such  palpable  wrong  there  should  be  some  ade- 
quate remedy.  If  it  be  conceded  that  the  company 
is  bound  to  deliver  the  written  message  in  any  event, 
it  follows  that  it  is  bound  to  deliver  it  without  any 
diminution  in  value,  just  as  the  carrier  must  deliver 
the  specific  chattel.  Here  the  analogy  is  complete. 
The  propriety  of  the  rule  in  both  cases  is  founded 
upon  the  same  considerations. 

§  249.  But  it  is  urged  that  telegraph  companies 
should  not  be  held  responsible  as  common  carriers, 

[266] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  250 

because,  owing  to  innumerable  causes  which,  may 
disturb  the  security  of  their  lines,  they  would  be  as 
often  open  to  liability  because  of  the  providence 
of  God  unknown  to  them,  as  for  any  other  reason.1 

Upon  close  investigation,  we  think  this  will  prove 
to  be  more  in  apprehension  than  reality.  Common 
carriers  relieve  themselves  from  liability,  by  proving 
the  loss  to  have  been  caused  by  lightning,  storms, 
floods,  or  earthquakes.  It  would  seem  that  one  class 
of  persons  could  prove  these  things  as  well  as  another. 

It  is  true,  the  common  carrier  usually  has  a  witness 
in  charge  of  the  goods ;  and  it  is  therefore  easy  to 
make  proof  of  the  act  of  God;  but  that  is  not  the 
reason  why  exemption  is  allowed.  It  is  because 
these  phenomena  of  nature  cannot  be  simulated ; 
false  testimony  as  to  their  existence  can  nearly  always 
be  controverted  successfully ;  and  because  the  loss  is 
not  caused  by  the  neglect  of  the  carrier.  As  all  par- 
ties are  free  from  blame,  it  is  but  common  justice  that 
the  owner  should  bear  the  loss. 

§  250.  If  a  storm  should  prostrate  telegraph  posts, 
it  would  be  susceptible  of  proof.  Length  of  wires 
and  number  of  posts  are  no  causes  of  exemption,  for 
these  are  matters  of  choice  on  the  part  of  the  com- 
pany ;  and  their  charges  have  reference  to  compensa- 
tion for  these  very  things.  But  if  posts  go  down 
from  decay,  or  negligence  in  their  erection,  no  special 
immunity  should  be  allowed;  for  these  are  facts 
peculiarly  within  their  own  cognizance,  and  for  which 
they  alone  are  responsible. 

1  18  Md.  341.  This  ground  of  exemption  is  stated  in  slightly  different 
phraseology,  in  Ellis'  case,  13  Allen. 

[267] 


§   251  EXTENT    OF    RESPONSIBILITY  [PART  II. 

§  251.  The  most  frequent  cause  of  disturbance, 
however,  is  electricity.  Whilst  this  is  a  dreadful  enemy 
of  ordinary  carriers,  —  destroying  railroad  trains,  ships, 
and  cargoes, —  yet  it  is  the  chosen  agent  and  trusted 
friend,  the  very  life  and  soul  of  telegraphy.  Where 
wires  traverse  a  continent,  excess  of  electricity  will 
happen  at  some  point  almost  every  day.  And  so  up- 
on the  ocean,  some  ship  is  in  a  storm  all  the  time. 
But  the  chance  for  establishing  the  truth  in  telegraph 
cases  is  much  more  favorable,  both  for  the  public  and 
the  company.  The  whole  land  is  full  of  witnesses ; 
but  not  so  of  the  sea.  The  company  has  its  agents 
every  few  miles,  whose  instruments  instantly  and  in- 
fallibly detect  the  presence  of  the  disturbing  ele- 
ment, and  measure  its  force  and  duration.  Within  a 
few  hours  they  may  know  exactly  where  the  storm 
occurred,  and  fortify  themselves  with  proof  of  its 
locality,  duration,  and  force.  It  is  true  the  lines  may 
be  influenced  by  atmospheric  or  electrical  disturbances, 
not  obvious  to  the  world  at  large,  yet  these  minor 
causes,  as  well  as  the  more  public  storms,  are  only  oc- 
casions of  delay.  Every  operator  on  the  line  knows 
when  there  is  an  excess  of  electricity ;  and  can  tell 
when  a  message  may  be  accurately  transmitted.  He 
is  not  required  to  work  his  puny  battery  when  the 
storm-king  rides  in  majesty  over  the  wires ;  but,  when 
this  overwhelming  force  has  disappeared,  the  wonder- 
ful agent  resumes  its  kindly  relations,  and  obeys  the 
gentlest  biddings  of  its  master.  This  triumph  of  sci- 
ence is  dazzling  indeed,  but  it  should  not  blind  the  eyes 
of  the  law.  If  the  chances  for  gain  impel  the  compa- 
nies to  the  contest  with  superior  powers,  they  well 

[268] 


CHAP.  IV.]  IN    RELATION    TO   MESSAGES.  §  252 

know  the  risk,  and  cannot  plead  that  the  failure  to 
transmit  and  deliver  was  caused  by  a  "  providence  of 
God  unknown,"  or  by  an  "  unforeseen  disarrangement 
of  electrical  apparatus."  The  employer  may  indeed 
be  ignorant  of  the  disturbance,  and  yet  he  must  sub- 
mit to  the  necessary  delay,  without  redress.  When  the 
emergency  shall  have  passed,  however,  he  is  entitled 
to  his  place  upon  the  list  of  messages  to  be  sent,  and 
to  diligence  in  the  operator  sending  them. 

§  252.  We  have,  at  the  risk  of  prolixity,  shown  the 
conflict  in  the  various  decisions,  among  themselves; 
but  the  case  of  Carew l  seems  to  invite  special  atten- 
tion, on  account  of  its  singularly  inaccurate  and 
contradictory  reasoning.  It  is  first  laid  down  that 
telegraph  companies  are  not  common  carriers,  unless 
made  so  by  statute.  The  liabilities  of  common  carriers 
were  originally  determined  by  the  usages  of  trade,  and 
the  opinions  of  the  judges,  predicated  upon  the  obli- 
gations they  assumed  and  the  nature  of  their  business. 
We  have  known  many  acts  of  incorporation,  under 
which  this  kind  of  business  was  conducted ;  but  do 
not  remember  any  statute,  anywhere,  declaring  an  in- 
dividual or  company  to  be  a  common  carrier.2  If 
telegraph  companies  avoid  this  responsibility,  until  de- 
volved upon  them  by  statute,  they  will  probably  enjoy 
perpetual  immunity. 

The  Court  further  say,  "  that  they  do  not  become  in- 
surers against  all  errors  in  the  transmission  or  delivery 

1  The  Western  Union  Teleg.  Co.  v.  Carew,  15  Mich.  R.  525. 

2  In  Ellis'  case,  it  is  observed  that  "  there  is  nothing  in  the  statute 
which  gives  countenance  to  the  suggestion,  urged  by  plaintiff's  counsel, 
that  owners  or  conductors  of  telegraphs  are  bound  to  warrant  or  insure 
the  correct  transmission  of  the  messages  which  they  undertake  to  send." 

[269] 


§  253  EXTENT   OF    RESPONSIBILITY  [PART   II. 

of  messages,  except  so  far  as  by  their  rules  and  regula- 
tions, or  by  contract,  or  otherwise,  they  choose  to 
assume  that  position,  or  hold  themselves  out  as  such 
to  the  public  or  those  who  employ  them ;  "  all  of  which 
would  seem  to  imply  that  whenever  a  telegraph  com- 
pany is  a  common  carrier,  the  fact  of  its  being  so 
ought  not  to  be  doubted.  In  this  case,  some  duties 
and  liabilities  are  prescribed  in  the  statute  ;  such,  for 
instance,  as  taking  all  messages,  either  from  individu- 
als or  other  companies,  and  transmitting  them  faithful- 
ly and  impartially  in  their  order,  for  uniform  rates, 
in  doing  which  they  exercise  a  public  employment ; 
yet  they  are  not  common  carriers,  say  the  Court,  be- 
cause the  statute  contains  no  provision  imposing  the 
liabilities  of  common  carriers.  Perhaps  the  true  test 
as  to  whether  a  corporation  is  a  common  carrier  or 
not,  is  found  in  the  objects  for  which  the  charter  was 
granted,  and  not  in  the  mere  incident  of  having  power 
to  make  certain  regulations,  nor  in  the  failure  of  the 
legislature  to  superadd  a  synopsis  of  its  responsibili- 
ties upon  contracts  to  be  made  in  the  future. 

§  253.  But  the  Court  announced  a  doctrine,  which 
we  do  approve :  "  Impartiality  and  good  faith  are  the 
chief,  if  not  only,  obligations  required  by  the  statute, 
so  far  as  relates  to  the  question  here  involved.  Beyond 
these  statute  requirements,  their  obligations  must  be 
fixed  by  considerations  growing  out  of  the  nature  of 
the  business  in  which  they  are  engaged,  the  character 
of  the  particular  transactions  which  may  arise  in  the 
course  of  their  business,  and  the  application  of  the 
principles  of  justice  and  public  policy,  recognized  a/ ik< 
by  common  sense  and  the  common  law? 

[270] 


CHAP.  IV.]  IN   RELATION   TO    MESSAGES.  §  255 

This  seems  to  be  the  true  foundation ;  and  upon  it 
rests  the  superstructure  of  our  argument.  All  the 
statutes  are  similar  in  this  respect ;  and  it  seems  to  us 
that  the  only  plausible  grounds  for  an  adverse  opinion 
rests  upon  the  general  provision  allowing  them  to 
make  rules  and  regulations  for  the  conduct  of  their 
business. 

§  254.  But  before  discussing  their  power  thereby  to 
make  limitations  of  responsibility,  we  will  remark, 
that  viewing  the  subject  in  these  different  lights,  seems 
to  us  to  sufficiently  demonstrate  that  responsibility  of 
the  company  for  a  faithful  delivery  of  the  message 
does  not  depend  upon  the  value  of  the  message,  nor 
the  mode  of  transmitting,  nor  the  rate  of  compensa- 
tion ;  but  upon  the  nature  of  the  engagement ; l  as  in 
the  case  of  all  other  common  carriers. 

§  255.  But  if  they  are  to  be  held  only  to  a  certain 
diligence,  or  to  a  higher  degree  of  diligence  than  or- 
dinary bailees ;  or  if  a  peculiar  liability  is  to  be  carved 
out  and  denned, —  the  whole  public,  including  the 
companies,  must  continue  for  a  long  time  incumbered 
with  distressing  doubts  as  to  their  rights  and  duties. 

Public  welfare  is  the  great  and  final  test  in  matters 
at  common  law ;  and  this  is  eminently  so  as  regards 
privileged  classes  and  monopolists.  We  have  shown, 
by  analogy,  strong  reasons  for  holding  them  to  be  com- 
mon carriers  ;  and  this  conclusion  is  greatly  strength- 
ened by  the  argument  of  convenience. 

1  Also,  see  an  interesting  article  on  the  subject  of  Telegraphs  and 
Telegrams,  in  the  February  number,  1865,  of  The  Am.  Law  Reg.,  (N.S.) 
vol.  iv.  p.  193,  where  the  analogy  is  discussed,  in  contrast  with  letter- 
carriers. 

[271] 


§  257  EXTENT    OF    RESPONSIBILITY  [PART   II. 

They  must  be  regarded  as  works  of  internal  im- 
provement, essentially  public  works.  They  operate 
under  charters,  invoke  the  government's  powers  of 
eminent  domain,  and  thus  force  their  lines  to  such 
points  as  they  may  select ;  and  enjoy  other  privileges 
more  or  less,  exclusive.  Their  business  is  operated 
through  agencies  yet  mysterious  to  the  unskilful,  and 
by  processes  of  a  character  highly  scientific.  Miscon- 
duct on  their  part  is  therefore  easily  concealed ;  de- 
tection is  almost  impossible ;  and  a  defence  may  be 
readily  framed  upon  the  basis  of  unknown  providences 
and  disturbing  forces. 

§  256.  Many  of  the  adjudged  cases,  critically  exam- 
ined, show  readiness  on  the  part  of  the  courts  to  act 
upon  suggestions,  more  specious  than  real,  of  mysteries 
and  impossibilities.  Undeniably  they  are  more  like 
common  carriers  than  any  other  class  of  bailees ;  and, 
all  things  considered,  it  would  be  safe  and  proper  to 
hold  them  to  that  basis  of  accountability ;  and  if,  in 
future  workings,  cases  arise  in  which  an  exception 
should  be  made,  founded  upon  sufficient  reasons  of 
public  policy,  and  the  nature  of  things,  let  it  be 
definitely  declared.1  Thus  gradually  a  system  of  tele- 
graph law  will  be  built  up,  and  the  rights  of  all  be 
fully  protected. 

§  257.  Telegraph  companies  usually  have  a  clause 
in  their  charters,  authorizing  them  to  make  rules  and 
regulations  in  reference  to  the  sending  of  messages ; 
and  prominent  among  them  is  one,  declaring  that 
important  messages  ought  to  be  repeated,  and  that 
they  will  not  be  responsible  for  mistakes  or  delays  in 

1  2  Parsons  on  Contracts,  1 73. 
[272] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  258 

the  transmission  or  delivery  of  unrepeated  messages, 
from  whatever  cause  they  may  arise,  beyond  the  cost 
of  transmission. 

The  phraseology  is  almost  identical,  as  at  first 
adopted  by  most  of  the  companies  in  England  and 
America.  The  charters  and  general  statutes  are  very 
much  alike  in  the  language  authorizing  the  adopting 
of  their  rules.1 

In  England,  common  carriers  are  permitted  to  go 
further  in  limiting  their  liabilities  than  in  America ; 
and  hence  the  by-laws  of  telegraph  companies  must 
receive  different  constructions  in  the  courts  of  these 
two  countries,  though  they  should  concur  in  holding 
them  to  be,  or  not  to  be,  common  carriers.  In  re- 
viewing and  weighing  authorities,  this  difference 
should  be  carefully  remembered. 

§  258.  We  shall  first  consider  the  rule,  as  if  made 
by  an  ordinary  bailee  for  hire,  or  as  of  that  class  of  bail- 
ments known  as  "  locatio  operisfaciendi."  Such  bailees 
may  charge  for  skill  and  labor  as  they  choose ;  and  may 
reject  offers  of  employment,  because  they  are  in  no 
way  bound  to  the  public.  They  might  refuse  to  send 
a  message,  unless  repeated  once  or  oftener.  They 
might  agree  to  send,  but  decline  to  deliver.  In  short, 
the  whole  matter  would  rest  in  contract,  and  a  rule 
would  be  unnecessary. 

But  it  is  not  true  that  chartered  telegraph  compa- 
nies fall  within  this  definition.  They  are  works  of 
internal  improvement,  public,  to  all  intents  and  pur- 
poses, (bound  to  send  all  messages  offered,  in  their 
order,  and  for  uniform  rates;  and  faithfully  and 

1  Ante,  §§  113-117. 

18  [273] 


§  260  EXTENT    OF    RESPONSIBILITY  [PART  II. 

promptly  to  deliver  them.  All  these  ideas  are  incon- 
sistent with  the  nature  of  mere  bailees  for  hire. 

§  259.  In  the  second  place,  consider  the  rule  as  if 
made  in  bailments  denominated  locatio  operis  mercium 
vehendarum. 

Can  common  carriers  enforce  such  a  rule"?  Certain- 
ly they  cannot  protect  themselves  from  the  conse- 
quences of  their  own  neglect,  either  in  shipping, 
custody,  or  delivery.  They  may  establish  fast  and 
slow  lines,  and  may  graduate  their  charges  accord- 
ingly ;  but  the  measure  of  responsibility  is  not  modi- 
fied or  changed.  The  identical  goods  must  be 
delivered,  in  the  usual  time,  unless  good  and  suffi- 
cient excuse  can  be  rendered.  The  obligation  is"  to 
deliver  safely  at  all  events,  excepting  the  goods  be 
lost  by  the  act  of  God  or  the  public  enemy.  When 
the  responsibility  has  begun,  it  continues,  until  there 
has  been  a  due  delivery  by  the  carrier,  or  he  has  dis- 
charged himself  of  the  custody  of  the  goods  in  his 
character  of  common  carrier.1  The  true  question  is 
not  one  of  actual  blame,  but  of  legal  obligation. 
The  fact  of  non-delivery  is  alone  sufficient  to  render 
him  responsible.  Even  a  private  carrier  must  give 
some  account  of  the  loss,  must  prove  the  fact ;  and  a 
failure  to  do  so  would  of  itself  be  conclusive  evidence 
of  gross  negligence,  or  even  fraud. 

§  260.  It  has  been  held  in  some  of  the  States  of 
the  Union,  that  common  carriers  cannot  restrict  their 
liability  by  notices,  receipts,  and  contracts ;  because 
doing  so  contravenes  the  policy  of  the  law.2 

1  Kent,  604  (6th  ed.). 

8  Fish  v.  Ross,  2  Kelly  (Geo.)  R.  349 ;  and  Ang.  Com.  Car.  §  241,  et  seq. 
[274] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  261 

It  has  been  denied  in  American  courts,  after  the 
most  elaborate  consideration,  that  they  may,  by  a 
general  notice,  limit,  restrict,  or  avoid  the  liability 
devolved  on  them  by  the  common  law.1 

A  common  carrier  cannot  exempt  himself  entirely 
from  the  responsibility  or  from  the  duties  which  the 
law  has  annexed  to  his  employment,  by  a  notice 
published ; 2  and,  notwithstanding  any  notices  that 
may  be  given,  the  owner  of  goods  has  a  right  to  insist 
that  the  carrier  shall  receive  them,  subject  to  all  the 
responsibilities  incident  to  the  business  of  carrying.3 
There  are  certain  obligations  fixed  upon  them  by  law, 
against  which  they  may  not  stipulate ;  and  among  these 
are  the  duty  of  taking  business  as  offered,  at  uniform 
rates,  and  of  exercising  such  diligence  and  care  as  a 
prudent  man  would  upon  his  own  business.  They 
cannot  protect  themselves  against  misfeasance  or 
gross  negligence.4 

§  261.  Now,  it  is  clear  that  a  common  carrier  may 
by  special  contract  limit  his  liability  for  loss  or  injury 
of  goods,  arising  from  any  cause,  except  the  misfeas- 
ance or  neglect  of  himself  and  servants.  And  yet, 
when  he  fails  to  deliver  the  goods,  the  burden  of 
showing  the  fact  of  loss  or  injury,  still  rests  upon  him. 
He  must  negative  the  presumption  of  negligence,  con- 
sequent upon  every  failure  to  deliver,  by  proof  of 
circumstances  which  do  not  lead  to  any  presumption 
of  negligence  on  his  part.  Doing  this,  shifts  the  onus, 

1  2  Greenleaf,  Ev.  §  215. 

2  New  Jersey  Steam  Nav.  Co.  v.  The  Merchants'  Bank,  6  How.  U.S. 
R.  344. 

3  2  Greenleaf,  Ev.  §  215. 

*  Angell  on  Com.  Car.,  §§  267-275,  and  cases  cited. 

[275] 


§  262  EXTENT    OF    RESPONSIBILITY  [PART  II. 

and  gives  him  the  benefit  of  defending  under  the 
special  contract  by  which  his  liability  may  be  limited. 
In  order  to  success,  the  plaintiff  must  then  show  that 
the  loss  or  injury  was  occasioned  by  want  of  due  care 
or  by  gross  negligence.1 

Under  the  workings  of  this  rule,  the  common  car- 
rier secures  the  benefit  of  most  of  the  immunities 
enjoyed  by  the  private  carrier ;  but  not  all.  He  is  a 
common  carrier  still.  He  must  meet  the  wants  of  the 
public,  by  furnishing  suitable  and  sufficient  accommo- 
dations in  his  peculiar  line  for  ordinary  demands  ;  all 
his  agencies  and  appliances  must  come  fully  up  to  the 
most  improved  state  of  the  art ;  he  must  take  business 
in  the  order  in  which  it  may  be  offered,  at  uniform 
rates,  and  treat  his  employers  with  impartiality. 

§  262.  And  now,  to  make  a  practical  application 
of  this  discussion,  we  ask,  What  is  the  difference 
between  the  rights,  duties,  and  responsibilities  of 
telegraph  companies,  and  those  of  common  carriers  ? 
We  regard  them  as  being  so  nearly  identical,  that 
they  can  be  safely  subjected  to  precisely  the  same 
rules  of  responsibility  in  all  their  engagements  with 
the  public.  This  holding  will  not  deprive  the  tele- 
graph companies  of  the  full  and  perfect  enjoyment 
of  all  that  is  meant  by  the  chartered  privilege  of 
making  rules  for  the  conducting  of  their  public 
business,  and  the  government  of  their  internal  affairs ; 
and,  at  the  same  time,  it  avoids  many  of  the  hazards 
and  positive  injuries  that  must  necessarily  supervene 
whilst  a  peculiar  system  of  telegraph  law  is  being 
built  up  and  established.  As  to  custody  and  delivery 

1  Story  on  Bailments,  §  278. 
[276] 


CHAP.  IV.]  IN    RELATION    TO   MESSAGES.  §  263 

of  goods  and  of  messages,  it  seems  plain  that  there  is 
no  difference.  In  the  act  of  transmission  the  diffi- 
culty is  said  to  appear ;  and,  to  lessen  responsibility, 
some  companies  give  notice  that  important  messages 
should  be  repeated.  For  this  repetition  additional 
compensation  must  be  paid.  That  suggests  a  rate  of 
charges,  and  not  a  measure  of  responsibility ;  for  a 
repeated  message  is  subject  to  the  ordinary  mishaps 
of  an  unrepeated  message ;  both  are  alike  affected  by 
storms,  unknown  providences,  and  imperfection  of 
instruments  ;  and  additional  certainty  is  only  attained 
by  corresponding  labor,  care,  and  diligence.  The 
company  cannot  refuse  to  send  a  message ;  and  for 
that  service  the  employer  must  pay  the  ordinary 
charge.  If  a  repetition  is  desired,  the  additional 
price  must  be  paid.  If  the  parties  choose  to  make 
a  special  contract  as  to  the  company's  responsibility, 
that  may  be  done  within  the  limits  prescribed  by  the 
law  as  applicable  to  common  carriers.  How  such 
contracts  may  be  made,  the  modes  of  proof,  and 
the  rules  of  construction,  are  treated  of  elsewhere 
in  this  book,  and  in  various  works  upon  common 
carriers. 

§  263.  The  adjudged  cases  nearly  all  are  confined 
to  a  consideration  of  errors  in  the  transmission  of 
messages ;  but  they  have  not  been  as  explicit  as  per- 
haps is  desirable,  in  restricting  their  language  to  that 
part  of  the  regulation  which  applies  to  this  default 
alone.  There  is  no  propriety  in  holding  that  the 
company  would  be  excused  for  non-delivery  of  one 
kind  of  message,  by  causes  that  would  not  be  suf- 
ficient for  another.  We  have  found  but  one  case 

[277] 


§  264  EXTENT    OF    RESPONSIBILITY  [PART  II. 

in  which  delay  in  the  delivery  of  a  message  after 
transmission  was  the  ground  of  complaint.1  This 
action  was  brought  to  recover  damages  for  a  delay 
on  the  part  of  the  telegraph  company  in  delivering  a 
message  in  Providence,  R.I.,  by  which  the  plaintiffs 
lost  the  opportunity  of  attaching  a  house  and  lot  in 
that  city,  belonging  to  a  debtor.  This  property  was 
attachable  while  the  debtor  was  out  of  the  State,  and 
it  could  and  would  have  been  attached,  if  the  operator 
had  delivered  the  message  as  promptly  as  he  might 
have  done.  The  urgency  of  the  case  was  fully  made 
known  to  him  by  the  despatch  itself,  and  aliunde. 
Responsibility  was  resisted  on  the  ground  that  this 
was  an  unrepeated  message ;  that  by  the  company's 
regulation  it  avoided  being  "  responsible  for  mistakes 
or  delays  in  the  transmission  of  unrepeated  messages, 
from  whatever  causes  they  may  arise." 

§  264.  Upon  this  point  the  Court  held  (Daly,  J.), 
"It  is  apparent  from  the  wording  of  the  conditions 
that  there  is  a  distinction  between  the  transmission 
and  the  delivery  of  a  message:  that  the  first  means 
its  transmission,  from  the  office  or  station  at  which  it 
is  received,  to  the  one  to  which  it  is  sent ;  and  the 
other,  the  delivery  of  it  to  the  person  to  whom  it  is 
addressed.  The  clause  relating  to  messages  which 
are  repeated  refers  to  mistakes  or  delays  in  their 
transmission  or  delivery ;  while  that  which  relates  to 
unrepeated  messages  refers  to  mistakes  or  delays  in 
their  transmission  alone.  What  is  obviously  meant 
by  the  latter  clause  is,  that  the  company  will  not  be 
responsible  for  any  mistake  or  delay  in  the  trans- 

1  Bryant  v.  The  Am.  Teleg.  Co.  1  Daly,  575. 
[278] 


CHAP.  IV.]  IN    RELATION   TO    MESSAGES.  §  266 

mission  of  a  message,  unless  it  is  repeated ;  which 
has  no  application  to  this  case,  as  there  was  no  mis- 
take or  delay  in  the  transmission  of  the  message,  but 
the  delay  was  in  the  delivery  after  it  had  been  cor- 
rectly transmitted.  That  the  message  had  not  been 
repeated,  therefore,  furnished  no  ground  for  granting 
a  nonsuit." 

§  265.  This  transaction  occurred  in  1860.  The 
discrimination  seems  just,  and  the  decision  proper. 
But,  if  we  turn  our  attention  to  the  later  regulations 
of  other  companies,  we  find  that  the  grounds  for  this 
discrimination  have  been  removed  by  a  change  of 
terms.  Take,  for  instance,  those  of  the  Western 
Union  Telegraph  Co.,  in  the  case  of  Carew,1  decided 
in  1867.  There  it  is  prescribed,  "Nor  will  the  com- 
pany be  responsible  for  any  error  or  delay  in  the 
transmission  or  delivery,  or  for  the  non-delivery,  of 
any  unrepeated  message,  beyond  the  amount  paid  for 
sending  the  same,  unless  in  like  manner  specially 
insured,  and  amount  of  risk  stated  thereon  and 
paid  for  at  the  time."  This  peaces  delay,  erroneous 
delivery,  and  non-delivery  of  a  message  after  trans- 
mission, upon  precisely  the  same  footing  of  restricted 
liability,  as  if  applicable  to  transmission  alone. 

§  266.  To  sustain  this  there  can  be  no  argument 
predicated  upon  unknown  providences,  unforeseen 
derangement  of  electrical  apparatus,  arbitrary  signs, 
sounds,  etc.  This  regulation  fixes  the  amount  of  lia- 
bility, and,  if  binding,  will  be  sufficient  to  protect  the 
company  against  the  consequences  of  non-feasance, 
misfeasance,  and  gross  negligence.  It  makes  the 

1  15  Mich.  525. 

[279] 


§  268  EXTENT    OF    RESPONSIBILITY  [PART  II. 

cost  of  transmission  the  penalty  in  any  case,  and 
leaves  performance  to  depend  upon  the  estimated 
difference  between  profit  and  convenience.  Where 
courts  allow  common  carriers  to  contract  in  this  way, 
telegraph  companies  will  be  properly  allowed  the 
same  advantage  ;  but  to  us  it  seems  violative  of  prin- 
ciple, and  destructive  of  the  very  objects  for  which 
the  franchise  was  bestowed.1 

§  267.  We  have  spoken  of  the  rights  of  telegraph 
companies  in  respect  of  messages  in  cipher  or  ob- 
scurely written.  These  may  be  absolutely  rejected. 
But,  if  undertaken,  the  company  will  be  bound  to  the 
use  of  due  care,  skill,  and  diligence  in  the  trans- 
mission. If  this  be  so,  there  must  be  some  mode  of 
enforcing  the  contract;  and  therefore  a  stipulation 
against  all  liability  is  void.  If  a  message  is  not 
legible,  it  is  the  same  as  no  message ;  and  no  oper- 
ator should  undertake,  for  pay,  to  send  a  message 
which  he  cannot  read. 

§  268.  Responsibility  for  messages  beyond  the  com- 


1  The  case  of  the  Bait.  &  Ohio  Railroad  Co.  v.  Rathbone,  1  West 
Va.  87,  does  not  sustain  the  text  as  to  gross  negligence.  It  is  there  held 
"  that  it  is  competent  for  a  common  carrier  to  diminish  and  restrict  his 
common  law  liability  by  special  contract,  and  that  he  may,  by  express 
stipulations,  also  absolve  himself  from  all  liability  resulting  from  any  and 
every  degree  of  negligence,  however  gross  (if  it  fall  short  of  misfeasance  or 
fraud),  provided  the  terms  and  language  of  the  contract  are  so  clear  and 
definite  as  to  leave  no  doubt  that  such  was  the  understanding  and  inten- 
tion of  the  parties." 

It  is  hardly  to  be  supposed  that  any  published  regulations  or  offered 
terms  of  a  contract  will  go  to  this  length,  where  there  is  competition ;  and 
yet  it  is  generally  insisted,  on  behalf  of  telegraph  companies  in  litigation, 
that  the  regulations  which  they  do  actually  publish  are  effectual  to  the 
exclusion  of  all  responsibility  not  fixed  by  special  contract  of  insurance,  as 
it  is  called. 
[280] 


CHAP.  IV.]  IN    RELATION    TO    MESSAGES.  §  269 

pany's  line  is  treated  of  elsewhere,  at  large  ; l  but  it 
is  proper  here  to  consider  how  far  it  may  be  affected 
by  the  usual  printed  notices  or  blanks.  They  usually 
contain  a  clause  like  this :  "  Nor  is  any  liability  as- 
sumed by  this  company  for  any  error  or  neglect  by 
any  other  company  over  whose  lines  this  message 
may  be  sent  to  reach  its  destination."  The  company 
has  the  right  to  restrict  its  business  to  its  own  line, 
except  so  far  as  it  may  be  required  to  receive  and 
forward  to  other  lines,  by  its  charter ;  and  in  doing 
this  no  responsibility  is  assumed  for  any  thing  beyond 
its  own  line.  But  if  business  relations  shall  be  estab- 
lished, involving  an  association  of  lines,  and  com- 
munity or  division  of  profits,  as  such  ;  or  if  any  other 
arrangement  shall  be  made  different  from  the  abso- 
lute independent  working  of  each  separate  line  in  the 
matter  of  transmitting  and  delivering  messages,  — 
then  we  should  say  that  the  employer  would  be  enti- 
tled to  the  full  benefit  of  all  such  arrangements,  as 
against  the  company  receiving  his  message,  notwith- 
standing the  stipulation  in  the  blank  upon  which  it 
was  written. 

§  269.  If  this  independent  action  of  the  line  within 
its  own  limits  shall  be  maintained,  then  it  is  fit  and 
proper  for  this  regulation  to  go  further,  as  is  usually 
the  case,  and  stipulate  that  the  company  shall  be 
considered  as  the  agent  of  the  sender  to  forward  his 
message.  But  if  one  company  is  really  the  agent  or 
associate  of  another,  for  mutual  advantage  and  gain, 
a  stipulation  that  it  must  be  regarded  as  the  agent  of 
the  sender  becomes  nugatory.  It  cannot  justly  hold 

1  Post,  c.  5. 

[281] 


§  269  IN   RELATION    TO    MESSAGES.  [PART   II. 

this  position  of  double  agency,  and  choose  which  it 
will  claim  and  which  ignore,  when  responsibilities 
are  pressed  upon  it  by  the  sender.1 

1  See  post,  c.  5. 

NOTE.  —  In  his  late  edition  of  the  Law  of  Railways,  Chief-Justice 
Redfield  has  inserted  the  leading  propositions  hitherto  declared  in  the 
courts,  both  in  England  and  America ;  and  his  summary,  as  evincing 
"the  animus  of  the  rule  of  law  upon  the  point  of  the  responsibility  of 
telegraph  companies,"  is  as  follows :  — 

"  1.  If  they  annex  no  conditions  to  their  undertaking,  they  will  be  ex- 
pected to  do  it  in  the  same  careful  and  faithful  manner  that  other  careful 
and  skilful  men  in  that  department  do  such  business. 

"  2.  If  a  message  is  left  and  paid  for  as  a  single  transmission,  the 
sender,  or  those  interested  in  the  sending,  will  be  expected  to  assume 
what  risk  necessarily  attends  such  transmission,  after  diligent  and  faithful 
efforts  to  accomplish  the  duty. 

"  3.  As  there  is  but  one  sure  test  of  the  accuracy  of  messages  being 
sent,  that  is,  by  repeating  them,  one  who  desires  to  secure  that,  or  where 
business  is  of  such  importance  as  to  make  that  desirable  and  reasonable, 
will  be  expected  to  so  inform  the  company,  and  pay  for  the  insurance. 

"  4.  This  rule  is  so  obviously  just  and  reasonable,  that  we  believe  it 
forms  a  standing  and  undeviating  rule  of  all  the  telegraph  companies  here 
and  elsewhere,  and  is  so  notorious,  that  all  persons  sending  messages  may 
fairly  be  presumed  connusant  of  its  existence,  and  will  be  bound  by  it." 

Upon  the  first  proposition  we  remark,  that  it  accords  with  what  we 
have  written,  if  the  word  "  department "  refers  to  the  business  of  common 
carriers.  But  if  it  is  restricted  to  that  of  telegraphing,  we  fail  to  see  the 
effect  of  the  comparison. 

Upon  the  fourth  :  It  goes  beyond  the  decisions,  and  announces  that  as 
presumption  of  law,  which  yet  rests  in  contract.  At  least  the  telegraph 
companies  are  not  willing  to  risk  such  a  presumption.  They  are  very 
careful  to  have  messages  written  on  their  blanks,  so  as  to  make  a  contract ; 
for  if  not  so  done,  they  remain  under  the  exactions  of  the  first  rule  above 
set  forth,  whatever  may  be  their  "  department"  of  business. 


[282] 


CHAP.  V.]          BEYOND    THE    COMPANY'S    LINE.  §  270 


CHAPTER   V. 

KESPONSIBILITY    FOR    MESSAGES    BEYOND    THE    COMPANY'S 

LINE. 

§  270.  IN  determining  the  responsibility  of  tele- 
graph companies  for  the  transmission  of  messages 
over  connecting  lines  of  other  companies,  the  most 
formal  and  scientific  method  would  be  to  consider 
specially  the  nature  of  their  business  engagements 
with  the  public.  But  this  need  not  be  done  for  the 
present;  for,  whatever  maybe  the  ultimate  decision  as 
to  whether  they  are,  or  are  not,  common  carriers,  the 
resemblances  and  analogies  between  the  two  are  so 
strong  in  this  respect,  that  all  will  probably  agree,  that 
the  rules  of  law  which  govern  one,  may  safely  be  ap- 
plied to  the  other.  The  authorities  are  not  harmonious 
as  to  the  liability  of  railroads  and  other  common  car- 
riers, for  failures  in  duty  by  connecting  lines ;  but,  as 
a  general  thing,  the  same  courts  hold  the  same  rules 
to  be  applicable  alike  to  carriers  and  telegraph  com- 
panies ;  thus  at  least  maintaining  a  consistency  in  this 
respect.  The  cases  involving  the  responsibilities  of 
the  former  are  always  used  as  determinative  of  those 
of  the  latter.  We  think  the  analogy  is  perfect ;  and 
will,  for  the  sake  of  perspicuity,  briefly  rehearse  the 
authorities  declaring  the  responsibilities  of  common 

[283] 


§  271  RESPONSIBILITY    FOR    MESSAGES  [PART   II. 

carriers,  as  aids  in  ascertaining  what  should  be  the 
responsibilities  of  telegraph  companies. 

§  271.  The  doctrine  upon  this  subject  is  now  per- 
fectly well  settled  in  England.  It  is  this:  "  Where  a 
railroad  company  receives  goods  for  carriage,  directed 
to  a  particular  place  beyond  the  terminus  of  its  route, 
and  does  not  by  positive  stipulation  limit  its  liability  to 
a  part  only  of  the  distance,  this  is  primd  facie  evidence 
of  a  contract  to  carry  the  goods  to  the  place  to  which 
they  are  directed,  although  such  place  be  beyond  the 
terminus  of  its  route. 

This  was  the  doctrine  announced  in  the  case  of 
Muschamp  v.  The  Lancaster  &  Preston  Railroad  Co.,1 
which  is  the  leading  case  in  the  English  courts  upon 
this  subject ;  and  the  rule  there  laid  down  has  been 
followed  and  approved  in  all  subsequent  decisions.2 

And  as  a  corollary  from  this  proposition,  it  is  held, 
that  in  such  cases  the  original  company  alone  is  liable 
to  the  sender  of  the  goods,  being  the  only  party  con- 
tracting with  him,  although  it  be  shown  that  the  loss 
occurred  on  the  connecting  line ;  such  connecting  com- 
pany is  not  liable  to  him.3 

1  8  Mees.  &  Welsh.  421. 

•  Mytton  v.  Midland  Railway  Co.  Eng.  Ex.  4  H.  &  N.  614 ;  Coxon 
c.  Great  Western  R.R.  Co.  5  H.  &  N.  272;  Blake  r.  Same,  7  ib.  986; 
Crouch  v.  London  &  N.W.  Railway,  25  Eng.  Law  &  Eq.  R.  287;  Scot- 
thorn  v.  South  Saffordshire  R.'  18  Eng.  Law  &  Eq.  R.  553  ;    Wilson  v. 
York  N.  &  B.  Railway,  18  Eng.  Law  &  Eq.  R.  557. 

*  Collins  v.  The  Bristol  &  Exeter  Railway  Co.  11  Exch.  R.  789. 

In  this  case  it  is  held  that  express  stipulations  in  the  contract  between 
the  original  company  and  the  sender  of  the  goods,  whereby  it  restricted  its 
responsibility  for  losses,  would  protect  all  the  connecting  companies,  although 
the  losses  occurring  on  such  connecting  line  may  have  been  of  such  a  char- 
acter as  to  fix  the  liability  of  a  common  carrier. — S.C.  7  Ho.  Lords  Cas. 
194. 

[284] 


CHAP.  V.]     BEYOND  THE  COMPANY'S  LINE.      §  272 

§  272.  The  law  upon  this  subject  is  still  unsettled  in 
the  American  courts,  and  much  diversity  of  decision 
exists  in  the  different  States. 

Some  of  them  go  to  the  extent  of  fully  re-affirming 
the  English  rule  as  above  stated ; !  while,  in  other 
States,  it  is  held,  that  the  acceptance  of  goods  by  a 
common  carrier  marked  for  a  destination  beyond  the 
terminus  of  its  route,  or  the  giving  of  a  receipt  for  the 
entire  distance,  or  receiving  the  freight  for  the  entire 
distance,  is  not  regarded  as  primd  facie  evidence  of  an 
undertaking  to  carry  the  goods  through  to  such  place  ; 
but  that  there  must  be  a  special  contract  to  make  the 
original  company  liable  for  losses  beyond  its  own 
route.2 

There  is  in  other  States  a  modification  of  this  last- 
stated  rule,  and  a  strong  leaning  toward  the  English 
decisions.3 

1  Iowa,  South  Carolina,  and  Tennessee ;  Angle  &  Co.  ».  Mississippi  & 
Mo.  R.R.  Co.  9  Iowa,  487  ;  Bradford  v.  S.C.  R.R.  Co.  7  Rich.  201 ;  Kyle 
v.  The  Lawrence  R.R.  Co.  10  Rich.  382;  Carter  v.  Peck,  4  Sneed,  203. 
This  last  case  is  as  to  passengers,  but  the  same  principle  is  recognized  as 
in  case  of  goods. 

8  Massachusetts,  Connecticut,  and  Vermont ;  Nutting  v.  Conn.  River 
R.R.  Co.  1  Gray,  502;  Briggs  v.  Boston  &  Lowell  R.R.  Co.  6  Allen,  246  ; 
Elmore  v.  Naugatuck  R.R.  Co.  23  Conn.  457;  F.  &  M.  Bank  v.  Cham- 
plain  Transportation  Co.  18  Vt.  R.  140. 

3  Perkins  v.  Portland,  Saco,  &  P.  R.R.  Co.  47  Maine,  573 ;  Bennett 
v.  Filyaw,  1  Florida  R.  403 ;  Cin.,  Ham.,  &  Dayton  R.R.  Co.  and  Dayton 
&  Mich.  R.R.  Co.  v.  Spratt,  2  Duvall  (Ky.)  R.  4 ;  where  it  is  said,  "  In 
all  such  cases  of  associated  companies  engaged  in  a  common  undertaking 
for  transportation  on  a  long  line,  of  which  each  associate  owns  a  different 
link,  public  justice  and  commercial  policy  require  a  stringent  construc- 
tion against  any  intermediate  irresponsibility  as  common  carriers."  Candee 
v.  The  Penn.  R.R.  Co.  21  Wis.  R.  582,  citing  Illinois  Cen.  R.R.  Co.  v. 
Copeland,  24  111.  332,  and  Peet  v.  Chicago  &  N.W.  R.R.  Co.  19  Wis.  118, 
"  holding  that  where  a  railroad  company  contracted  as  carrier  to  transport 
goods  for  the  whole  line,  it  became  liable  for  any  injury  which  might  hap- 

[285] 


§  275  RESPONSIBILITY    FOR    MESSAGES  [PART  II. 

§  273.  But  the  doctrine  is  fully  recognized,  both  in 
the  English  and  American  courts,  that  common  car- 
riers may  make  valid  contracts  to  carry  beyond  the 
limits  of  their  own  route,  and  thus  render  themselves 
liable  for  the  acts  of  other  carriers,  who  at  the  same 
time  are  independent  carriers,  and  in  110  way  under 
the  direction  or  control  of  the  contracting  company.1 

This  is  sustained  upon  the  ground  that  the  right  to 
make  such  contracts  is  one  of  the  implied  or  inciden- 
tal powers  belonging  to  such  corporations;  and  as 
these  connecting  lines  are  becoming  every  day  more 
numerous  and  indispensable  to  the  facilitating  of  com- 
merce, such  powers  must  be  regarded  as  indispensable 
incidents  to  the  express  powers. 

§  274.  But  the  difficulty  is  to  be  found  in  determin- 
ing what  facts  and  circumstances  shall  be  evidence  of 
such  a  contract  on  the  part  of  the  company,  to  whom 
the  goods  are  delivered  for  carriage.  The  rule  laid 
down  in  the  English  cases,  as  we  have  seen,  is  clearly 
defined  and  readily  comprehended. 

The  fact  of  receiving  the  goods  marked  to  a  desti- 
nation beyond  the  company's  route  is  evidence  of  a 
contract  upon  the  part  of  the  company  to  deliver  at 
such  place ;  and  the  company,  in  order  to  confine  its 
responsibility  to  its  own  route  in  such  cases,  must  do 
so  by  express  contract. 

§  275.  If  it  be  admitted  that  the  common  carrier 
has  the  right  to  contract  for  responsibility  beyond  its 

pen  to  them  beyond  the  terminus  of  its  own  road,  while  under  the  control 
of  other  carriers." 

1  Except  in  Connecticut,  where  this  is  denied.     Hood  v.  N.Y  &  N.H. 
R.R.  Co.  22  Conn.  1 ;  s.c.  ib.  509.     See  Elmore  v.  Naugatuck  R.R.  Co.  23 
Conn.  457;  Naugatuck  R.R.  Co.  v.  Waterbury  Button  Co.  24  Conn.  468. 
[286] 


CHAP.  V.]  BEYOND    THE    COMPANY'S    LINE.  §  276 

own  route,  it  is  difficult  to  perceive  why  such  contract 
must  be  express  upon  the  part  of  the  company,  and 
why  it  may  not  be  implied  from  the  facts  and  circum- 
stances attending  the  particular  case,  just  as  in  all 
contracts  made  by  itself  or  other  persons.  Suit  for  a 
loss  would  be  predicated  upon  the  facts,  and  a  declara- 
tion averring  loss  upon  a  connecting  line  for  whose 
acts  the  defendant  was  responsible,  would  not  be 
demurrable.  But  statement  of  bailment,  and  loss  by 
default  of  defendant,  would  be  sufficient.  Proof  of 
loss  by  default  of  a  company  for  whose  acts  the  defend- 
ant was  answerable,  in  respect  of  the  loss,  would 
sustain  either  declaration.  This  responsibility  for  the 
conduct  of  others  may  be  shown  by  a  contract  to  that 
effect,  or  by  facts  from  which  it  may  be  implied.  How 
this  was,  the  jury,  under  proper  instructions  from  the 
Court,  would  determine.1 

§  276.  The  shipment  of  goods,  and  the  transmission 
of  messages  over  connecting  lines,  is  a  matter  of  daily 
occurrence ;  and  the  great  multiplication  of  railroad 
and  telegraph  companies,  and  the  connections  which 
they  must  make  with  each  other  so  as  to  form  one  con- 
tinuous route,  make  it  important  that  the  rules  on  this 
subject  should  be  well  settled  and  accurately  denned  ; 
and  it  becomes  a  matter  of  regret  that  such  is  not  the 
case  in  the  American  courts. 

§  277.  The  practical  advantages,  and  the  more 
satisfactory  reasoning,  considering  the  relation  in  which 
the  shipper  of  the  goods  and  the  sender  of  the  mes- 
sage stand  to  the  company  who  undertakes  to  carry  or 

1  Bennett  v.  Filyaw,  1  Florida  R.  403 ;  Weed  v.  Sar.  &  S.  R.R.  Co. 
19  Wend.  534. 

[287] 


§  278  RESPONSIBILITY    FOR    MESSAGES  [PART  IT. 

transmit  for  them,  seem  to  be  found  in  the  English 
rule ;  for  the  sender  of  the  goods  or  message  may  not 
know  where  the  company's  line  terminates,  nor  what 
arrangements  it  may  have  with  connecting  lines,  if 
there  be  such,  on  the  route  over  which  his  goods 
or  message  must  pass.  It  will  be  a  simple,  convenient, 
and  useful  rule  in  any  case  where  services  are  to  be 
performed  beyond  the  company's  line  or  road,  for  an 
express  contract  to  be  made,  if  desirable,  stipulating 
against  errors,  losses,  or  delays  upon  the  lines  or  roads 
of  other  companies.1  In  modern  days,  what  is  called 
"  through  business,"  upon  railways  at  least,  is  of  more 
importance  than  the  local.  Combinations  are  made  so 
that  inducements  of  a  substantial  character  may  be 
offered,  with  a  view  of  securing  patronage.  Not  the 
least  among  these  is  the  assurance  of  prompt  and  con- 
venient adjustment  of  possible  losses. 

§  278.  In  a  recent  American  work  on  railways,2  it 
is  said :  "  Where  different  roads  are  united  in  one  con- 
tinuous route,  such  an  undertaking  in  regard  to  mer- 
chandise, received  and  booked  for  any  point  upon 
the  line  of  the  connected  companies,  is  almost  a  mat- 


1  After -much  diversity  of  decisions  in  the  New  York  courts,  this  ques- 
tion has  been  finally  settled  in  accordance  with  the  above  view,  as  to  rail- 
road companies,  by  statute,  2  Revised  Statutes,  sees.  67,  693. 

1  Redfield  on  Railways,  284.  In  the  case  of  St.  John  v.  Van  Sant- 
voord,  6  Hill,  157,  it  was  held  that  if  the  owner  of  the  poods  neglects  to 
make  the  necessary  inquiries  as  to  the  custom  or  usage  of  the  company,  or 
to  give  directions  for  their  disposal,  it  is  his  fault,  and  the  loss,  if  any,  after 
the  carrier  has  performed  his  duty  according  to  the  ordinary  course  of  his 
business,  must  fall  on  the  owner. 

On  the  other  hand,  in   Angle  &  Co.  v.  The  Mississippi  R.R.  Co.  9 
Iowa,  487,  it  is  held  that  to  exempt  the  company,  the  usage  to  deliver  at 
the  termination  of  their  road  must  be  brought  home  to  the  consignor. 
[288] 


CHAP.  V.]  BEYOND    THE    COMPANY'S    LINE.  §   280 

ter  of  course.  It  is,  we  think,  the  more  general  un- 
derstanding upon  this  subject  among  business  men 
and  railways,  their  agents  and  servants." 

But  few  cases  have  arisen  upon  this  subject  in  ref- 
erence to  telegraph  companies.  There  can  be  but 
little  doubt  but  the  rule  in  relation  to  telegraph  com- 
panies will  be  the  same  as  that  which  may  have  been 
previously  adopted  in  the  court  where  the  decision 
is  made,  in  reference  to  railroad  companies. 

§  279.  The  question  has  never  been  before  the 
courts  of  England.  They  will  doubtless  follow  Mus- 
champ  v.  The  Lancaster  &  Preston  Railway  Co.,1  and 
establish  the  doctrine  that  where  a  telegraph  company 
undertakes  the  transmission  of  a  message  directed  to 
a  particular  place  beyond  the  terminus  of  its  own 
line,  and  does  not  by  express  stipulation  limit  its  lia- 
bility, it  shall  be  liable  for  losses  or  delays  or  mis- 
takes occurring  beyond  the  terminus  of  its  line,  in 
the  same  manner  and  to  the  same  extent,  as  if  the 
injury  had  occurred  upon  its  own  line. 

§  280.  The  question  has  come  before  the  courts  of 
Canada  for  determination,  in  the  case  of  Stevenson  v. 
The  Montreal  Telegraph  Co.2 

The  Montreal  Telegraph  Company  owned  a  line  ex- 
tending from  Montreal  to  Buffalo  only,  but  connected 
with  other  lines  in  Canada  and  the  United  States  ;  and 
in  their  printed  handbills  they  advertised  their  line  as 
"  connecting  with  all  the  principal  cities  and  towns 
in  Canada  and  the  United  States." 

The  plaintiff  delivered  to  the  defendants'  operator  at 
Montreal,  for  transmission  to  New  York  City,  a  mes- 

1  8  Mees.  &  W.  421.  ;  16  Upper  Canada  R.  530. 

19  [289] 


§281  RESPONSIBILITY    FOR    MESSAGES  [PART   II. 

sage  addressed  to  his  agent  at  that  place,  and  paid 
the  full  price  for  its  transmission  to  its  destination. 
It  does  not  appear  that  the  defendants  gave  the  plain- 
tiff any  notice  of  the  terminus  of  their  line,  except 
so  far  as  it  was  contained  in  the  general  notice  that 
they  connected  with  all  the  principal  cities  and  towns 
in  Canada  and  the  United  States. 

At  Buffalo,  the  terminus  of  defendants'  line,  their 
operator  delivered  the  message  to  the  operator  of  the 
American  line  at  Buffalo,  and  paid  him  the  charges 
of  transmission  from  that  point  to  the  city  of  New 
York. 

There  was  delay  either  in  the  transmission  over  the 
American  line,  or  in  the  delivery  of  the  message  in 
New  York  by  that  company.  Damage  was  thereby 
sustained,  and  the  plaintiff  brought  this  action 
against  the  original  company. 

§281.  It  was  held  by  a  divided  court,  that  the 
Montreal  Telegraph  Company  under  this  state  of 
facts  could  not  be  held  liable  for  delay  beyond  their 
own  line,  but  that  their  responsibility  was  limited  to  the 
transmission  of  the  message  to  Buffalo,  and  the  deliv- 
ery of  it  to  the  American  line,  and  the  payment  of 
the  charge  of  its  transmission  to  its  destination ;  and 
that  the  announcement  that  their  line  "  connected  with 
all  the  principal  cities  and  towns  in  Canada  and  the 
United  States,"  only  meant  that  the  defendants  had 
effected  such  arrangements  as  would  insure  to  the 
public  the  convenience  of  having  their  messages  re- 
ceived by  other  connecting  lines  and  forwarded  to 
places  beyond  the  terminus  of  the  defendants'  line, 
both  in  Canada  and  the  United  States ;  and  the  Court 

[290] 


CHAP.  V.]     BEYOND  THE  COMPANY'S  LINE.      §  282 

were  further  of  opinion,  that  a  contract  to  deliver  the 
message  at  the  city  of  New  York  could  not  be  im- 
plied from  the  defendants'  having  received  the  whole 
charge  for  transmitting  the  message  the  entire  dis- 
tance ;  but  that  this  was  done  for  convenience  of  the 
plaintiff  merely,  and  relieved  him  from  the  necessity 
of  making  any  other  arrangement  to  pay  the  charges 
at  the  commencement  of  the  connecting  line. 

§  282.  The  dissenting  opinion  was  based  upon  the 
principles  announced  in  Muschamp  v.  Lancaster  & 
Preston  Junction  R.K,.  Co.,  and  other  leading  English 
cases ;  and  it  was  considered  that  the  defendants,  by 
undertaking  to  transmit  the  message  to  any  point 
which  was  in  fact  beyond  the  terminus  of  its  line,  did 
thereby  in  fact  contract  to  do  so,  and  that,  in  such 
case,  the  connecting  line  was  but  the  agent  of  the 
company  receiving  the  message  for  transmission,  for 
the  purpose  of  completing  the  contract.  The  judge 
delivering  the  dissenting  opinion  said,  further,  that 
the  notice  above  referred  to  was  not  to  be  regarded 
as  a  limitation  of  their  undertaking,  and  that  they 
thus  contracted  to  send  over  their  own  line,  and  .for- 
ward it  by  the  connecting  line,  merely ;  but  by  stat- 
ing to  the  plaintiff  that  his  message  could  be  sent  to 
New  York,  and  receiving  from  him  the  price  of  its  en- 
tire transmission,  the  company  thereby  undertook  and 
agreed  to  send  the  message  to  New  York,  and  to  be 
responsible  for  its  delivery  there. 

And  as  the  defendants  did  not  inform  him  to  the 
contrary,  the  plaintiff  had  the  right  to  suppose  that 
they  had  control  of  the  line  to  New  York ;  that  the 
paper  gave  no  information  that  the  defendants  may 

[291] 


§  282  RESPONSIBILITY    FOR    MESSAGES  [PART  II. 

not  have  been  the  owners  of  the  line  of  wires  the 
whole  distance  to  New  York ;  and  nothing  appeared 
in  the  case  to  show  that  the  plaintiff  may  not  have 
supposed  that  the  defendants  had  at  least  the  control 
of  the  line,  so  as  to  send  on  his  message  the  whole 
distance,  as  he  paid  for  the  whole  distance.1 

1  As  this  is  a  question  of  great  practical  importance,  we  give  the  opin- 
ion of  the  Court,  and  the  dissenting  opinion  in  full,  upon  this  branch  of 
the  case. 

The  opinion  of  the  Court  was  delivered  by  Robinson,  C.J.,  who 
said,  — 

"  We  none  of  us  doubt  that  a  telegraph  company,  like  other  incor- 
porated companies,  if  it  undertakes,  for  reward,  to  perform  a  service  within 
the  proper  scope  of  its  business,  is  bound  to  discharge  the  duty  which  they 
have  undertaken  with  care  and  diligence,  and  with  a  reasonable  degree  of 
skill  and  efficiency ;  and  that  if  they  fail  in  any  of  these  particulars,  the 
person  who  employed  them  can  recover  from  them  in  a  court  of  law  com- 
pensation in  damages  for  the  injury  which  they  have  occasioned,  not  al- 
ways, indeed,  to  the  full  extent  of  what  such  person  may  have  lost,  but 
compensation  for  any  injury  directly  and  naturally  arising  from  the  com- 
pany's default,  and  such  as  consequently  may  be  fairly  supposed  to  have 
been  within  the  contemplation  of  the  parties  when  the  service  was  under- 
taken. 

"  Taking  this  view,  then,  we  have  to  consider,  — 

"  1st,  What  was  it  that  these  defendants  engaged  to  do  ? 

"  2d,  Did  they  fail,  and  in  what  particular,  in  fulfilling  their  engage- 
ment? 

"  3d,  Is  their  failure  fairly  attributable  to  neglect,  such  as  should  make 
them  legally  liable  ? 

"  4th,  And  if  so,  on  what  principle  should  the  damages  be  estimated  ? 

"  As  to  the  first  point  —  the  contract.  What  did  the  defendants  en- 
gage to  do  ?  I  find  no  case  bearing  on  this  point,  where  the  principles  of 
law  happen  to  have  been  laid  down  in  regard  to  a  telegraph  company. 
We  must  take  them,  I  think,  from  analogy  with  what  has  been  laid  down 
in  regard  to  railway  companies.  I  have  looked  through  all  the  English 
cases  I  can  find  on  this  subject,  down  to  the  case  of  Collins  v.  The  Bristol 
&  Exeter  Railway  Company  (1  H.  &  N.  517),  decided  in  the  Exchequer 
Chamber ;  and  my  opinion  is,  that,  although  the  Montreal  Telegraph  Com- 
pany announced  in  their  handbills,  that  they  connected  with  all  the  prin- 
cipal towns  and  cities  in  the  United  States,  they  did  not  thereby  declare 
that  they  were  connected  with  them  in  business,  but  only  that  they  had 
[292] 


CHAP.  V.]  BEYOND    THE    COMPANY'S    LINE.  §  283 

§  283.  This  dissenting  opinion  accords  with  the 
doctrine  laid  down  in  Iowa,1  where  it  is  held,  that 

made  such  arrangements  as  would  insure  to  the  public  the  convenience  of 
their  messages  being  taken  up  and  forwarded  to  cities  and  towns  to  which 
the  operations  of  the  Montreal  Telegraph  Company  do  not  extend.  We 
see  scarcely  a  railway  in  the  Province,  whether  the  line  be  long  or  short, 
or  a  line  of  steamers,  in  reference  to  which  it  is  not  announced  by  the  hand- 
bills which  they  put  out,  that  they  connect  with  railways  and  lines  of 
steamers  leading  to  the  various  places  to  which  it  is  known  that  travellers 
chiefly  resort.  Our  Northern  Railway  Company,  for  instance,  may  inform 
the  public  that  they  connect  with  steamers  in  Toronto,  going  to  Kingston 
and  Oswego.  In  respect  to  the  short  railway  between  Port  Stanley  and 
London,  as  I  happened  lately  to  observe,  it  is  announced  in  handbills  that 
it  connects  at  London  with  trains  which  go  east  and  west,  to  various 
points  named,  extending  from  Quebec  to  the  Mississippi.  Such  advertise- 
ments, in  my  opinion,  mean  nothing  more  than  that  the  passengers  carried 
upon  the  line  belonging  to  the  company  which  puts  out  these  handbills, 
will  find  the  arrangements  such  as  will  prevent  detention,  and  enable  them 
to  pursue  their  journey  promptly  and  conveniently  to  the  several  points 
mentioned. 

"  It  was  never  imagined  (and  it  would  be  a  most  unreasonable  construc- 
tion to  place  upon  the  announcements)  that  the  company  giving  the  public 
such  information,  were  thereby  engaging  upon  their  own  responsibility  to 
convey  passengers  safely  and  without  delay  along  all  the  lines  of  which 
they  make  mention  in  their  handbills. 

"  Then,  besides  their  handbills,  or  rather  besides  the  heads  which  ap- 
pear upon  the  telegraph  messages,  and  which  are  intended  to  circulate  the 
information  I  am  speaking  of,  there  was  nothing  shown  at  the  trial  from 
which  to  imply  a  contract,  further  than  that  the  company  sent  the  message 
from  Hamilton  direct  to  Newman  &  Co.,  at  New  York,  and  that  they  took 
the  forty  cents  on  behalf  of  the  Buffalo  &  New  York  line  of  telegraph, 
which  was  known  to  be  the  price,  and  by  which  arrangement  the  conven- 
ience was  secured  to  the  person  sending  the  message  of  having  it  taken 
up  and  continued  along  that  line.  Some  such  arrangement  as  that  is  in- 
dispensable, or  the  message  must  necessarily  stop  at  the  end  of  the  Mon- 
treal Telegraph  line,  or  it  would  have  to  be  directed  to  some  agent  there, 
who  would  have  to  go  to  the  commencement  of  the  other  line,  and  trans- 
mit the  same  message  there,  which  arrangement  would  be  most  inconven- 
ient, and  occasion  delay  and  expense. 

"  A  traveller  can  continue  his  route  from  one  railway  to  another,  and 


1  Angle  &  Co.  v.  The  Mississippi  R.R.  9  Iowa,  487. 

[293] 


§  283  RESPONSIBILITY    FOR   MESSAGES  [PART  II. 

"the  company  would  be  exempt  if  an  unvarying 
usage  to  deliver  at  the  terminus  of  their  road  was 

can  pay  as  he  goes  along ;  but  the  person  sending  the  telegraph  message 
cannot  accompany  it,  and  pay  on  each  new  line  the  charge  for  carrying  it 
further.  To  meet  the  exigency,  it  appears  the  Montreal  Telegraph  line 
took  from  the  person  sending  a  message  to  New  York  from  Hamilton  the 
exact  sum  which  a  person  going  to  the  office  would  have  to  pay  at  Buffalo 
for  sending  on  the  message  from  there  to  New  York,  and  this  insures  it 
going  on  with  that  care  and  despatch  for  which  the  company  sending  the 
message  from  Buffalo  is  responsible. 

"  I  observe  in  one  of  the  English  cases  that  the  arrangement  was  dif- 
ferent, and  the  company  receiving  the  package  of  goods  to  be  carried  to  a 
place  beyond  their  line,  had  such  an  understanding  with  the  other  com- 
pany, that  their  charges,  as  well  as  the  charge  for  the  transit  over  the 
other  line,  was  received  at  the  place  to  which  the  goods  were  ultimately 
carried.  The  Court  remarked  that  that  showed  the  latter  company  to  be 
the  agents  of  the  former,  as  they  received  the  money  coming  to  them,  and 
that  the  first  company  were  therefore  responsible  for  them,  as  all  employ- 
ers are  for  the  agents  they  employ.  Here  the  case  is  reversed.  The 
Montreal  Telegraph  Company  received  the  twenty-five  cents,  to  be  ac- 
counted for  by  them  to  the  American  Company,  and  in  that  respect,  were 
not  their  employers,  but  their  agents. 

"  In  my  opinion,  what  the  defendants  in  this  case  did,  had  not  the 
effect  of  making  them  responsible  for  the  punctual  delivery  of  the  message 
at  New  York,  by  the  servants  of  the  American  Telegraph  Company,  to 
the  person  there  to  whom  it  was  addressed." 

And  then  follows  a  discussion  of  the  question  whether  the  defendants 
failed  in  fulfilling  their  engagements  upon  their  own  line,  and  as  to  the 
principle  of  damages  in  the  case. 

The  dissenting  opinion  was  delivered  by  Burns,  J.,  who  said,  — 

"  It  appears  to  me  the  defendants  did  contract  to  transmit  the  message 
the  whole  way  to  New  York,  and  there  to  be  delivered  to  the  plaintiff's 
agent,  and  did  not  merely  contract  to  transmit  the  same  to  the  end  of  their 
line  at  Buffalo,  and  there  cause  the  message  to  be  delivered  to  the  Ameri- 
can line  for  the  purpose  of  transmission. 

"  The  cases  of  Muschamp  v.  The  Lancaster  &  Preston  Junction  Rail- 
way Co.  (8  M.  &  TV.  421)  ;  Watson  v.  The  Ambergate,  Nottingham,  &  Bos- 
ton Railway  Company  (15  Jur.  448),  and  Scotthorn  v.  The  South  Staf- 
fordshire Railway  Co.  (8  Exch.  341),  sufficiently,  I  think,  establish  that 
the  defendants,  by  undertaking  to  forward  messages  to  any  place  whichKas 
a  matter  of  fact,  was  beyond  their  own  line,  in  fact  did  contract  to  do 
so,  and  for  the  purposes  of  the  messages  being  correctly  transmitted  and 
delivered,  the  companies  or  persons  into  whose  custody  or  hands  the  mes- 
[294] 


CHAP.  V.]     BEYOND  THE  COMPANY'S  LINE.      §  284 

proven,  and  knowledge  of  such  usage  brought  home 
to  the  consignor." 

§  284.  The  decision  in  New  York  upon  this  ques- 
tion in  relation  to  telegraph  companies,  fully  sustains 
the  doctrine  as  now  settled  in  the  English  cases. 

This  was  the  case  of  De  E-utte  v.  (N.Y.,  Alb.,  & 
Buf.  Teleg.  Co.,  where  the  message  was  transmitted 
from  New  York  City  to  San  Francisco.  The  entire 
charge  for  its  transmission  to  the  latter  place  was 
paid  by  the  agent  of  the  plaintiff  to  the  defendants' 
operator  at  the  time  the  message  was  delivered  to  him 
for  transmission,  at  the  office  in  New  York. 

sages  were  delivered,  are,  in  fact,  their  agents  for  the  purpose  of  complet- 
ing the  contract. 

"  The  defendants  were  paid  for  transmission  of  the  message  the  whole 
distance  to  New  York,  and  I  do  not  look  upon  the  words  in  their  printed 
papers,  which  they  give  to  persons  desiring  to  send  messages  upon  which 
to  write  the  message ;  namely,  '  connecting  with  all  the  principal  cities 
and  towns  in  Canada  and  the  United  States,'  as  being  a  limitation  of  their 
undertaking  to  send  over  their  own  line  merely,  and  that  they  will  do 
their  best  to  have  the  message  sent  forward  beyond  that.  Such  words 
may  sometimes  have  such  limitation,  but  must  always,  I  think,  look  upon 
the  nature  of  the  business  done  by  both  parties,  their  conduct  and  all 
things  connected  with  it,  to  interpret  the  meaning. 

"  Now,  giving  parties  information  that  they  connect  in  the  manner 
mentioned  amounts  to  this :  When  a  person  goes  to  the  office  in  Hamilton, 
he  asks,  Can  a  message  by  the  telegraph  be  sent  to  New  York  ? — and  the 
answer  is,  that  it  can,  and  then  the  price  for  sending  is  paid.  It  amounts 
to  no  more  than  that,  as  it  appears  to  me ;  and  if  no  more  took  place  be- 
tween the  parties  than  that,  it  would  be  an  undertaking  to  send  and 
deliver  the  message  in  New  York  to  the  correspondent,  without  inquiring 
how  it  is  to  be  done.  All  communications  are  to  be  strictly  confidential, 
and  that  provision  is  an  agreement  extending  the  whole  distance,  I  should 
say.  The  paper  gives  no  information  that  the  defendants  may  not  be  the 
owners  of  the  line  of  wires  the  whole  distance  to  New  York,  and  nothing 
appears  upon  the  evidence  to  show  that  the  plaintiff  may  not  be  supposed 
to  have  thought  the  defendants  had  at  least  the  control  of  the  line,  so  as 
to  send  on  his  message  the  whole  distance,  as  he  paid  for  the  whole  dis- 
tance." 

[295] 


§  286  RESPONSIBILITY    FOR    MESSAGES  [PART  II. 

The  defendants'  line  extended  only  from  New  York 
to  Buffalo,  where  it  connected  with  other  indepen- 
dent lines,  and,  through  them,  with  a  pony  express  to 
San  Francisco.  The  defendants  transmitted  the  mes- 
sage safely  over  their  own  line,  and  it  was  correctly 
transmitted  on  the  connecting  lines  as  far  as  St.  Louis ; 
but,  when  delivered  to  the  plaintiff  at  San  Francisco, 
there  were  several  mistakes  in  it. 

§  285.  The  Court  held,  that  when  a  telegraph  com- 
pany is  paid  for  transmitting  a  message  beyond  its 
own  line,  to  a  place  with  which  they  are  in  communi- 
cation through  the  medium  of  the  lines  of  other  com- 
panies with  which  they  connect,  they  must  be  regarded 
as  undertaking  that  the  message  will  be  transmitted 
and  delivered  at  that  place ;  and  that  it  appeared  in 
this  case,  that  nothing  was  said  by  the  defendants, 
limiting  their  liability  to  their  own  line. 

It  was  further  held,  that  the  sender  of  the  message 
informing  the  defendants'  agent  that  he  desired  the 
message  sent  to  San  Francisco,  and  the  defendants' 
agent  receiving  from  him  the  entire  charges  for  the 
transmission  to  that  place,  was  primd  facie  evidence 
of  an  engagement  to  do  so.  This  brings  the  case  fully 
up  to  the  doctrine  laid  down  in  Muschamp  v.  The 
Lancaster  &  Preston  Junction  Railway. 

§  286.  It  was  contended  in  the  argument,  that,  as 
by  the  Statute  of  1848,  sec.  11,  it  is  made  the  duty  of 
telegraph  companies  to  receive  messages  from  and  for 
other  telegraph  companies,  therefore,  when  the  de- 
fendants had  transmitted  the  message  correctly  over 
their  own  line,  they  were  not  answerable  for  errors 
occurring  afterwards.  But  the  Court  held,  that  this 

[296] 


CHAP.  V.]     BEYOND  THE  COMPANY'S  LINE.  •     §  288 

requirement  of  the  statute  was  intended  as  much  for 
the  benefit  of  telegraph  companies,  as  for  the  individ- 
uals who  employed  them ;  and  that  the  object  of  the 
provision  was  to  enable  new  companies  to  compete 
with  established  lines,  and  could  not»  be  construed  as 
making  the  company  the  collecting  agent  of  other 
lines.1 

This  construction  of  the  statute  becomes  the  more 
important  from  the  fact  that  this  is  a  very  usual  pro- 
vision in  the  statutes  of  the  different  American  States. 

§  287.  The  Court  thus  strongly  and  clearly  state 
the  principle  which  was  held  to  govern  the  case : 
"  They  took  upon  themselves  the  whole  charge  of 
sending  it;  and  what  arrangements  were  made,  or 
what  sum  would  be  paid  for  the  use  of  the  lines  in 
connection  with  them  were  matters  not  disclosed  to 
the  party  interested  in  the  transmission  of  the  message, 
and  with  which,  consequently,  he  had  nothing  to  do. 

"  He  made  his  contract  with  them,  and,  if  injured  by 
its  non-fulfilment,  he  has  a  right  to  look  to  them  for 
compensation  for  the  injury  sustained." 

§  288.  The  Supreme  Court  of  California  manifested 
a  strong  disposition  to  hold  the  doctrine  of  the  English 
cases,  in  the  case  of  Thurn  v.  The  Alta  California 
Telegraph  Company.2 

The  action  was  brought  to  recover  a  penalty  under 
the  Statute  of  1850,  which  provided  for  the  recovery 

1  It  is  plainly  a  requirement  upon  the  companies  in  behalf  of  the  pub- 
lic, so  that  a  message  may  be  forced  through,  where,  without  this  provi- 
sion, personal  attendance  or  special  agencies  would  be  required.     Being 
thus  compelled  to  receive  from  and  for  each  other,  they  make  mutual 
accommodation  arrangements  about  collections. 

2  15  California  R.  472. 

[297] 


§  289  RESPONSIBILITY    FOR    MESSAGES  [PART  II. 

of  a  penalty  of  five  hundred  dollars  for  every  neglect 
or  refusal  to  transmit  despatches  with  impartiality  and 
good  faith,  etc.,  "  to  be  recovered  with  the  costs  of 
the  suit  in  the  name  and  for  the  benefit  of  the  person 
or  persons  sending  or  desiring  to  send  such  de- 
spatches." 

The  plaintiff  had  delivered  to  another  company, 
The  State  Telegraph  Company,  at  San  Francisco,  a 
message  to  be  transmitted  to  Jackson.  The  State 
Telegraph  Company's  line  extended  only  a  part  of  the 
distance,  and  then  connected  with  the  defendant's  line. 

The  entire  charge  was  paid  to  the  State  Telegraph 
Company.  The  message  was  promptly  transmitted 
over  their  line,  and  taken  by  their  agent  to  the  office 
of  the  defendant  at  the  place  where  the  lines  of  the 
two  companies  connected,  to  be  transmitted ;  and  cer- 
tain charges  were  tendered  by  the  State  Telegraph 
Company's  agent  to  the  defendant's  operator  as  the 
price  of  transmission,  who  declined  to  send  it  for  this 
sum,  as  the  charges  had  been  increased. 

§  289.  The  Court  held  that  the  penalty  could  not 
be  recovered,  as  the  suit  was  not  instituted  by  the 
proper  person;  that  while  the  plaintiff  might  have 
contracted  with  the  defendant  through  his  agent,  and 
in  such  case  have  enforced  the  penalty,  that  there 
was  no  agency  disclosed  here,  the  contract  being 
made  by  the  plaintiff  with  the  State  Telegraph  Com- 
pany, and'  that  this  company  was  alone  responsible 
to  the  plaintiff;  that  even  if  the  fact  had  been  dis- 
closed to  the  plaintiff  by  the  State  Telegraph  Company, 
that  there  was  a  connecting  line  over  which  his  mes- 
sage must  pass  to  reach  its  destination,  it  did  not 

[298] 


CHAP.  V.]     BEYOND  THE  COMPANY'S  LINE.      §  290 

follow  that  the  contract  was  not  made  with  the  State 
Telegraph  Company,  trusting  alone  to  its  responsi- 
bility, and  leaving  it  to  make  such  additional  contracts 
in  its  own  behalf  as  might  be  necessary  to  secure  the 
transmission  and  delivery  of  the  message  to  the  per- 
son to  whom  it  was  addressed. 

This  statute  likewise  contained  the  same  provision 
as  the  New  York  statute,  making  it  the  duty  of  tele- 
graph companies  to  receive  messages  from  and  for 
other  telegraph  companies. 

§  290.  Many  of  the  telegraph  companies  in  the 
United  States  have  the  terms  and  conditions  on  which 
messages  are  received,  printed  upon  the  slip  of  paper 
which  they  furnish  the  sender  of  the  message  upon 
which  to  write  out  the  message  he  desires  to  send. 

One  clause  in  the  printed  headings  used  by  many 
companies  is  to  the  following  effect :  That  no  liability 
is  assumed  by  the  company  for  any  error  or  neglect  by 
any  other  company  over  whose  lines  the  message  may 
be  sent  to  reach  its  destination,  and  that  "  the  company 
is  hereby  made  the  agent  of  the  sender  of  the  message 
to  forward  it  over  the  lines  extending  beyond  those  of 
this  company."  Whenever  these  or  similar  terms  have 
been  incorporated  in  the  contract,  or  become  part  of 
the  contract  by  fair  implication,  they  restrict  the  re- 
sponsibility of  the  company.  But,  in  order  to  determine 
what  is  the  contract,  it  is  proper  to  look  at  all  the 
facts.  If  these  headings  or  printed  forms  contain 
statements  that  the  company  will  receive  and  transmit 
messages  to  points  beyond  their  lines,  or  if  they  be  so 
worded  as  clearly  to  imply  that  their  lines  extend  to  a 
given  point,  these  are  elements  in  the  special  contract, 

[299] 


§  292  RESPONSIBILITY    FOR    MESSAGES  [PART  II. 

and  must  have  a  very  important  bearing  in  its  con- 
struction. 

§  291.  If  limited  responsibility  is  claimed  under  an 
implied  contract,  or  if  assent  to  the  printed  terms  rests 
upon  implication,  then  it  is  proper  to  consider  all  the 
surroundings  of  the  case,  in  order  to  see  what  was  rea- 
sonably to  be  implied  as  to  the  extent  of  the  company's 
undertaking.  If,  in  point  of  fact,  the  contracting  com- 
pany was  the  agent  of  the  other  companies,  and  as 
such  received  the  business  and  the  pay  for  them,  upon 
the  plan  of  a  "  through  "  arrangement  for  mutual  con- 
venience and  interest,  the  former  would  be  responsi- 
ble for  the  defaults  of  the  latter.  They  cannot  assume 
an  agency  for  profit,  involving  liability,  and  then 
afterwards,  without  a  disclosure  of  the  first,  assume  or 
stipulate  for  a  second  agency  in  protection  of  itself 
against  the  original  liability.  But  if  they  do  in  good 
faith  restrict  their  business  to  their  own  lines,  and 
only  forward  as  agent  of  the  sender,  they  are  entitled 
to  the  benefit  of  this  restricted  responsibility. 

§  292.  But  the  English  courts  have  gone  to  the 
extent  of  holding,  at  least  in  one  case,1  that  even 
where  the  company  had  published  a  general  notice 
that  they  would  not  be  responsible  for  forwarding 
goods  beyond  their  own  road,  the  freight  agent  whose 
duty  it  was  to  receive  and  forward  goods  had  the 
power  to  bind  the  company  by  express  contract  that 
the  goods  should  be  forwarded  to  a  point  beyond  the 
terminus  of  the  company's  road,  and  over  the  line  of  an 
independent  company,  and  delivered  to  the  consignee, 

1  Wilson  v.  York,  Newcastle,  &  Berwick  Railway,  18  Eng.  Law  & 
Eq.  R.  557 ;  case  at  Nisi  Prius,  before  Jervis,  C.J.,  in  1851. 
[300] 


CHAP.  V.]     BEYOND  THE  COMPANY'S  LINE.      §  293 

and   the    owner    could   recover   damages    for    losses 
beyond  the  terminus  of  the  company's  road. 

§  293.  The  more  generally  adopted  view  in  the 
American  courts  is,  that  when  goods  are  marked 
for  a  particular  place,  and  delivered  to  the  carrier  for 
shipment,  but  without  any  directions  being  given  for 
their  transportation  and  delivery,  except  such  as  may 
be  inferred  from  the  marks  themselves,  the  carrier  is 
only  bound  to  transport  and  deliver  them  according  to 
the  established  usage  of  the  business  in  which  he  is 
engaged,  and  that  it  makes  no  difference,  in  this 
respect,  whether  such  usage  were  known  to  the  ship- 
per of  the  goods  or  not.1 

1  See  Jenneson  v.  Camden  &  Amb.  Railway,  Dist.  Court  of  Phila., 
4  Am.  Law  Reg.  Feb.  1856,  234,  where  all  the  cases  on  this  subject 
are  reviewed,  and  the  conclusion  arrived  at  which  is  stated  in  the  text. 
The  Supreme  Court  of  Massachusetts  have  directly  disapproved  the  case 
of  Muschamp  v.  Lancaster  &  Preston  Junction  Railway,  8  M.  &.  W.  421, 
in  the  case  of  Nutting  v.  Connecticut  River  R.R.  Co.  1  Gray,  502; 
and  held  that  where  the  receipt  was  given  for  goods  marked  to  a  place 
beyond  the  terminus  of  its  route,  and  the  statement  made  in  the  receipt 
that  they  were  for  transportation  to  such  place,  the  burden  was  upon  the 
plaintiff  to  show  a  special  contract  by  the  company  to  carry  the  goods 
beyond  the  terminus  of  its  own  railway. 

In  the  case  of  Hood  v.  N.Y.  &  N.H.  R.R.  Co.  22  Conn.  R.  1,502,  the 
Supreme  Court  of  Connecticut  went  a  step  further  in  this  direction,  and 
held  that  the  conductor  had  no  authority  to  bind  the  company  to  carry 
beyond  the  limits  of  its  railway,  and  rested  this  holding  upon  the  ground 
that  the  company  itself  could  not  make  any  such  binding  contract. 

See  also  Elmore  v.  Naugatuck  R.R.  Co.  23  ib.  457 ;  24  ib.  468.  See 
generally,  Van  Santvoord  v.  St.  John,  6  Hill  (N.Y.)  R.  157;  Farm- 
ers' and  Mechanics'  Bank  v.  Champlain  Transportation  Co.  18  Vt.  R. 
140;  Lowell  Wire  Fence  Co.  v.  Sargent,  8  Allen,  189;  Northern  R.R. 
Co.  v.  Fitchburg  R.R.  Co.  6  Allen,  254 ;  Noyes  v.  Rut.  &  Bur.  R.R.  Co. 
27  Vt.  110;  Wright  v.  Boughton,  22  Barb.  561;  Bradford  v.  S.C.  R.R. 
Co.  7  Rich.  201. 

It  will  thus  be  seen  how  wide  is  the  diversity  of  judicial  opinion  upon 
this  subject,  reaching  from  the  holding  in  the  Connecticut  cases,  that  the 

[301] 


§  294  «      RESPONSIBILITY    FOR    MESSAGES,   ETC.       [PART  II. 

§  294.  This  subject  is  one  of  great  practical  impor- 
tance in  the  business  of  transmission  by  telegraph,  as 
well  as  of  shipment  by  rail ;  and  it  is  to  be  regretted 
that  there  is  not  greater  uniformity  in  the  decisions  of 
the  different  States  upon  this  subject. 

§  294  a.  Whenever  the  company  is  liable  for  the 
transmission  and  delivery  of  the  message  at  its  place  of 
destination,  although  it  may  be  passed  over  intermedi- 
ate independent  lines,  the  clerk  or  servant  of  the 
connecting  company  at  the  place  for  delivery  of  the 
message  will  be  the  agent  of  the  original  company, 
for  all  purposes  connected  with  the  delivery  of  the 
message,  in  the  same  manner  that  the  original  com- 
pany's own  servants  would  have  been,  had  the  mes- 
sage been  addressed  to  some  point  on  its  own  line. 

company  has  no  power,  even  by  express  contract,  to  bind  itself  beyond  its 
own  line,  on  the  one  hand,  to  the  extreme  doctrine  of  the  English  cases 
on  the  other,  which  apply  the  same  rule  announced  in  Muschamp  v.  Lan- 
caster &  Preston  Junction  Railway,  to  cases  where  the  destination  of  the 
goods  is  beyond  the  realm,  as  in  Crouch  v.  N.W.  R.R.  Co.  25  Eng.  Law  & 
Eq.  R.  287,  and  which  makes  the  company  liable  in  such  cases  as  if  the 
loss  were  on  its  own  line,  unless  it  expressly  stipulates  against  such  lia- 
bility. 

[802] 


CHAP.  VI.]          AS    A    MEDIUM    OF    CONTRACT.  §  296 


CHAPTER  VI. 

THE    TELEGRAPH    AS    A    MEDIUM    OF    CONTRACT. 

§  295.  THE  telegraph  may  be  used  as  the  medium 
of  communication  between  contracting  parties,  with- 
out any  previous  understanding  to  that  effect.  If  a 
proposition  were  made  in  the  first  instance  by  tele- 
graph, and  it  should  be  accepted  by  the  other  party 
through  the  same  medium,  without  there  having  been 
any  previous  dealings  or  agreement  between  the  par- 
ties, the  contract  would  be  as  complete  as  if  the  com- 
munications had  been  made  by  letter  through  the 
mail,  or  directly  by  the  parties  themselves  in  each 
other's  presence  ;  the  only  difference  being  in  the  char- 
acter of  evidence  necessary  to  prove  the  contract. 

So  the  communication  of  one  of  the  contracting 
parties  may  be  by  mail,  and  the  reply  thereto  by  tele- 
graph, and  thus  the  contract  be  completed.1 

§  296.  It  is  becoming  more  and  more  important 
that  the  rules  governing  negotiations  made  by  tele- 
graph should  be  clearly  defined  and  settled,  a&  con- 
tracts thus  made  are  constantly  increasing  in  number 
and  magnitude.  The  telegraph  lines  in  this  country 
and  in  England  are  becoming  more  extended,  and  are 
bringing  remote  commercial  points  into  direct  com- 
munication with  each  other.  They  are  now  largely 

1  Prosser  v.  Henderson,  20  Upper  Canada  Q.B.  R.  483. 

[303] 


§  297  THE    TELEGRAPH  [PART  II. 

employed,  not  only  in  transmitting  friendly  informa- 
tion and  general  and  commercial  news,  but  messages 
which  are  the  only  evidence  of  the  negotiations  of 
contracting  parties  in  their  business  transactions. 

§  297.  Interesting  questions  may  be  expected  to 
come  before  the  courts  in  reference  to  the  duty  of 
resorting  to  the  telegraph  for  the  purpose  of  convey- 
ing information,  where  an  obligation  rests  upon  one 
party  to  furnish  it  to  another,  and  where  delay  may 
occasion  loss  or  injury. 

Let  us  suppose  A.  in  New  York  was  under  legal 
obligation,  although  there  may  have  been  no  express 
agreement  to  that  effect,  to  furnish  B.  in  St.  Louis 
with  information  about  some  particular  fact,  a  knowl- 
edge of  which,  within  a  certain  time,  was  material  to 
B.'s  pecuniary  interests ;  as,  for  example,  the  price  of 
gold,  or  of  cotton,  on  a  particular  day,  or  at  a  par- 
ticular time  in  the  day.  Could  it  be  said  that  this 
duty  was  discharged  by  a  resort  to  the  mail  by  A.  \ 

Or  let  us  suppose  it  was  some  article  not  usually 
mentioned  in  the  press  despatches,  in  reference  to 
which  the  duty  of  giving  immediate  information 
rested  upon  A.  Suppose  A.  deposited  a  letter  in 
the  mail  at  New  York  addressed  to  B.  at  St.  Louis, 
conveying  this  information  immediately  upon  its 
being  ascertained  by  him,  and  that  by  reason  of  the 
length  of  time  necessary  for  transporting  the  mail, 
B.  lost  the  advantage  of  a  purchase,  or  investment, 
which  he  could  have  availed  himself  of,  had  the 
information  been  by  telegraph.  Could  A.  have  ex- 
cused himself  upon  the  ground  that  he  had  used 
due  diligence  in  furnishing  the  information  which  he 

[304] 


CHAP.  VI.]          AS    A   MEDIUM    OF    CONTRACT.  §  299 

was  under  a  legal  obligation  to  furnish,  by  showing 
that  he  thus  promptly  deposited  a  letter  in  the  post- 
office  in  New  York1?  Would  not  the  question  be, 
Was  that  degree  of  diligence  used  which  the  duty 
to  be  performed  required1?  And  such  being  the 
question,  and  a  more  rapid  medium  of  communi- 
cation than  the  mail  being  at  A.'s  command,  must 
not  A.,  in  the  exercise  of  due  diligence,  have  resorted 
to  such  mode  of  communication  1 

§  298.  Suppose  A.  had  made  an  agreement  with 
B.  to  keep  him  advised  as  to  the  condition,  for 
example,  of  the  gold  market  in  New  York.  Here,  if 
he  had  sent  the  information  from  day  to  day  by  mail, 
it  seems  clear  there  would  have  been  no  compliance 
with  the  contract,  for  information  so  conveyed 
could  be  of  no  advantage  to  B.  in  St.  Louis.  It 
would  doubtless  be  held,  in  such  case,  that  the  par- 
ties contemplated  the  use  of  the  telegraph  as  the 
medium  of  conveying  this  information.  And  why? 
Because,  from  the  nature  of  the  case,  it  was  the 
only  practicable  mode  of  carrying  into  effect  the  ob- 
ject in  contemplation  of  the  parties.  And  we  should 
say,  in  a  case  where  there  was  no  express  agree- 
ment between  the  parties,  but  an  implied  promise 
to  send  the  information,  the  holding  would  be  the 
same. 

§  299.  And  so,  in  all  other  cases,  where  the  time 
in  which  the  information  is  to  be  received  is  important, 
and  loss  may  be  sustained  by  the  delay,  and  there  is 
telegraph  communication  open  between  the  parties, 
we  should  think  it  the  better  opinion,  that,  in  the  ex- 
ercise of  that  diligence  which  the  law  requires,  there 

20        •  [305] 


§  301  THE    TELEGRAPH  [PART  II. 

would  be  a  legal  obligation  resting  upon  the  party  to 
use  the  telegraph. 

§  300.  This  proposition  conforms  to  the  general  doc- 
trine of  agency  under  similar  circumstances,  and  yet 
it  is  not  known  to  have  passed  into  judgment.  One  or 
two  cases,  however,  have  occurred,  in  which  the  duty 
of  using  the  telegraph  is  distinctly  recognized,  even 
where  the  rights  of  third  parties  may  be  consequen- 
tially involved.  A  very  recent  case  in  England *  pre- 
sented the  following  point :  — 

The  plaintiff  in  Liverpool  employed  an  agent  at 
Smyrna  to  buy  and  ship  goods.  The  agent  shipped 
goods  on  a  vessel  which  sailed  Jan.  23,  but  was  strand- 
ed the  same  day.  The  cargo  became  a  total  loss. 
The  agent  learned  the  loss  Jan.  24,  and  on  the  next 
post-day  informed  the  plaintiff  of  it  by  letter,  but  pur- 
posely abstained  from  telegraphing,  in  order  that  the 
plaintiff  might  not  be  prevented  from  insuring.  The 
plaintiff,  on  Jan.  31,  without  any  knowledge  of  the  loss, 
effected  an  insurance.  Held,  that  he  could  not  recov- 
er against  the  underwriters. 

As  the  agent  could  have  communicated  with  his 
principal  by  telegraph,  the  latter  was  bound  by  the 
knowledge  of  the  former ;  and  the  underwriters  were 
entitled  to  an  avoidance  of  the  policy. 

§  301.  The  Convoy's  Wheat*  is  the  other  case. 
There  a  bill  of  lading  of  wheat,  signed  by  the  master  of 
the  vessel  on  which  the  wheat  was  shipped  at  Chicago, 
stated  that  the  wheat  was  to  be  delivered  to  the  con- 
signees at "  O.  via  W.  Railway  from  Eort  C.,  to  Port  D., 

1  Proudfoot  v.  Montefiore,  Eng.  Law  Rep.  2  Q.B.  511. 
*  3  Wallace  (U.S.)  R.  225. 
[306] 


CHAP.  VI.]    AS  A  MEDIUM  OF  CONTRACT.        §  302 

thence  by  sail  or  steam  to  O.  Freight  to  Port  C.,  eight 
and  a  half  cents  per  bushel."  The  course  of  trade  is 
for  wheat  shipped  to  Port  C.,  to  go  through  the  rail- 
way's elevator  there ;  and,  if  the  vessels  are  so  numer- 
ous that  the  elevator  cannot  discharge  them  immedi- 
ately, they  must  wait  their  turn.  There  were  several 
vessels  at  Port  C.,  and  no  place  where  the  wheat  could 
be  stored ;  the  master,  without  waiting  for  his  turn,  or 
telegraphing,  as  he  might  have  done,  to  the  consign- 
ors, sailed  to  the  nearest  port,  and  stored  the  wheat. 
Held,  that  the  owners  of  the  vessel  had  no  lien  on  the 
wheat  for  freight  and  demurrage.  The  master  could 
have  obtained  instructions  at  once ;  and  if  ordered  to 
another  port,  his  lien  for  freight  and  demurrage  would 
have  been  fixed. 

These  are  the  only  cases  we  have  found  recognizing 
this  duty  to  resort  to  the  telegraph.  In  the  future  ad- 
judications upon  this  interesting  branch  of  telegraph 
law,  we  have  every  reason  to  expect  that  the  Courts 
will  uniformly  adopt  this  view. 

§  302.  Suppose  a  valuable  package  is  to  be  sent 
which  could  be  carried  by  mail,  but  could  also  be  car- 
ried by  express.  Could  the  party  whose  duty  it  was 
to  send  it,  deposit  it  in  the  mail  for  conveyance  when 
the  express,  which  was  the  safer  conveyance,  and 
which  furnished  a  responsible  party  or  company  to  be 
held  liable,  as  an  additional  security  in  case  of  loss, 
was  open  to  him  ]  In  this  case  safety  is  the  controlling 
consideration ;  in  the  case  of  the  telegraph,  time  is 
the  desideratum.  Time  may  be  as  important  an  ele- 
ment in  the  question  of  loss  in  the  one  case,  as  safety 
is  in  the  other. 

[307] 


§  304  THE    TELEGRAPH  [PART  II. 

§  303.  Where  there  is  a  custom,  or  usage,  to  con- 
vey the  information  by  mail,  the  duty  will  have  been 
discharged  by  resorting  to  the  mail;  as,  for  example, 
in  the  case  of  notices  of  protest.  Here,  although  it  is 
important  that  notices  should  be  sent  immediately  to 
all  antecedent  parties,  yet,  as  in  such  cases,  the  tele- 
graph has  never  been  resorted  to  for  that  purpose,  the 
notary  or  other  agent  would  have  discharged  his  duty 
by  sending  the  notices  by  mail. 

§  304.  It  has  been  suggested  by  an  eminent  writer 
upon  commercial  law,  that  if  a  notice  were  duly  sent 
by  telegraph  and  duly  delivered,  it  would  be  deemed 
sufficient.1 


1  1  Parsons  on  Notes  and  Bills,  pp.  486-489,  -where  it  is  said,  '•  It 
may  be  expected  that  questions  will  arise  on  this  subject  before  long, 
by  reason  of  the  recently  invented  and  already  generally  used  magnetic 
telegraph.  We  have  no  knowledge,  however,  of  its  being  used  for  pur- 
poses of  this  kind,  or  of  any  supposition  by  merchants  or  lawyers  that 
it  is  the  necessary  or  proper  instrument  for  giving  such  notices.  We 
shall  not  attempt  to  anticipate  either  these  questions  or  the  answers  to 
them  further  than  to  remark,  that  if  a  message  were  duly  sent  by  tele- 
graph, and  duly  delivered,  it  would  no  doubt  be  deemed  sufficient ;  and 
if  the  importance  of  giving  early  information  of  the  dishonor  of  negotia- 
ble paper  should  induce  our  merchants  to  apply  the  telegraph  to  this 
purpose,  a  usage  may  grow  up  which  would  gradually  acquire  the  force 
of  law.  At  present  no  such  usage  is  known  to  exist.  A  question  may 
arise  in  other  cases  of  notice  as  well  as  that  now  under  consideration,  in 
which  a  party  who  is  entitled  to  the  earliest  information  of  an  important 
fact,  from  a  delay  in  giving  this  notice  suffers  actual  damage,  and  this 
may  cause  the  inquiry  whether  the  informing  party  discharged  the  whole 
of  his  duty.  And  if  he  made  use  of  the  mail,  which  required  a  delay 
of  many  days,  when  a  means  of  telegraphic  communication  was  open  to 
him,  for  which  as  many  minutes  sufficed,  and  one  which  is  found  to  be 
reasonably  safe  and  trustworthy,  and  which  does  not  at  all  interfere  with 
a  resort  to  the  mail  also,  the  question  may  arise  whether  it  was  not  his 
duty  to  make  use  of  this  more  rapid  means ;  or,  on  the  other  hand, 
whether  it  would  not  be  competent  for  him  to  say  that  he  had  no  confi- 
dence in  new  things,  but  preferred  ire  per  antiquas 
1308] 


CHAP.  VI.]  AS    A    MEDIUM    OF    CONTRACT.  §  306 

§  305.  It  might  be  urged,  in  opposition  to  the  view 
that  there  is  a  legal  obligation  to  use  the  telegraph,  in 
all  cases  where  there  is  a  duty  to  give  immediate  infor- 
mation of  any  fact,  that  the  telegraph  is  but  a  private 
enterprise ;  and  that  there  was  no  greater  obligation 
to  use  it  than  to  intrust  the  information  to  any  private 
messenger,  who  would  propose  to  convey  the  intelli- 
gence in  advance  of  the  mail. 

But  it  would  seem  that  telegraph  companies  sustain 
very  different  relations  from  that  of  a  private  messen- 
ger. They  are  incorporated,  or  authorized  by  statu- 
tory law ;  they  sustain  a  public  relationship  ;  they  are 
bound  to  carry  for  all  persons  alike ;  and  engage  in  a 
general  public  duty,  regulated  by  fixed  rules,  and  a 
regular  mode  of  procedure  ;  they  hold  out  guarantees 
for  the  safe  transmission  of  messages  in  providing  a 
mode  in  which  all  messages  may  be  repeated,  thereby 
enabling  the  party  who  sends  the  message  to  know 
whether  or  not  it  reaches"  the  station  to  which  it  is 
addressed. 

§  306.  If  it  be  urged  that  this  mode  of  communi- 
cation is  subject  to  mistakes  and  irregularities  and 
failures,  it  may  be  answered  that  the  mail  communica- 
tion is  also  subject  to  irregularities,  delays,  and  failures. . 
The  telegraph,  in  fact,  affords  facilities  which  the 
mail  cannot  do,  in  enabling  all  parties  to  ascertain  at 
once,  or  within  a  very  short  space  of  time,  whether  or 
not  the  message  has  reached  its  destination  safely  and 
correctly ;  and  if  not,  the  failure  can  be  overcome,  and 
the  message  again  sent  the  second  time,  in  most  in- 
stances immediately  upon  ascertaining  that  there  is  any 
error  in  the  first  transmission.  If  it  be  urged  that  the 

[309] 


§  307  THE    TELEGRAPH  [PART  II. 

rules  of  telegraph  companies  require  the  prepayment 
of  messages,  it  may  be  answered,  that  letters  sent  by 
mail  must  likewise  be  prepaid.  The  fact  that  a  little 
larger  amount  is  required' for  the  prepayment  of  mes- 
sages, when  these  rules  are  adopted  by  telegraph  com- 
panies, requiring  prepayment  in  all  cases,  than  for  the 
prepayment  of  letters,  cannot,  we  submit,  vary  the  le- 
gal principle  ;  for  in  cases  where  the  party  sending  the 
information  would  have  the  right  to  debit  the  other 
party  with  all  necessary  expenditures  connected  there- 
with, he  would  have  the  same  right  to  debit  him  with 
the  postage  he  pays,  as  with  the  telegraph  charges  he 
would  pay;  and  this,  we  believe,  is  always  done  by 
notaries  public  in  notices  of  protest  of  foreign  bills  of 
exchange. 

The  stronger  reason,  in  support  of  the  obligation 
to  use  the  telegraph,  would  seem  to  be  that  it  does 
not  interfere  with  a  contemporaneous  use  of  the  mail, 
as  suggested  by  Professor  Parsons  in  the  extract  just 
given  in  the  note. 

§  307.  Many  of  these  questions  would  be  put  at 
rest  if  the  telegraph  should  be  made  by  law  a  part  of 
the  postal  system  of  the  Government.1  The  State 
.governments  would  of  course  adapt  their  legislation 
to  the  emergency,  so  that  notices  of  protest  and  all 
formal  notices,  should  be  sent  by  telegraph.  But 
without  any  such  subordinate  enactments,  it  would  un- 
questionably become  the  duty  of  all  persons  to  use 

1  There  are  strong  indications  that  this  will  soon  be  done  in  England ; 
and  the  initiatory  step  was  taken  in  the  United  States  by  Act  of  Congress, 
July  24,  1866,  providing  for  the  purchase  of  all  lines  five  years  after  the 
companies  should  file  written  acceptance  of  the  bounty  conferred  by 
the  act. 

[310] 


CHAP.  VI.]    AS  A  MEDIUM  OF  CONTRACT.       §  308 

this  means  upon  whom  rested  the  obligation  to  give 
immediate  information.  A  failure  to  do  so,  then, 
would  be  negligence  for  which  the  party  would  be 
liable,  just  as  now  in  cases  where  there  is  an  obliga- 
tion to  use  the  post. 

§  308.  In  the  State  of  California  it  is  provided  by 
statute,1  "  that  wherever  any  notice,  information,  or 
intelligence,  written  or  otherwise,  is  required  to  be 
given,  the  same  may  be  given  by  telegraph,  provided 
that  the  despatch  containing  the  same  be  delivered  to 
the  person  entitled  thereto,  or  to  his  agent  or  attorney," 
and  that  notice  by  telegraph  shall  be  deemed  actual 
notice. 

It  is  also  provided,  that  any  power  of  attorney  or 
other  instrument  of  writing,  properly  proven  and  cer- 
tified, may  be  transmitted  by  telegraph,  and  the  tele- 
graphic copy  or  a  duplicate  shall  primd  facie  have 
the  same  force  and  effect  as  the  original  instrument, 
and  may  likewise  be  admitted  to  record ;  and  further, 
that  checks,  due-bills,  promissory  notes,  bills  of  ex- 
change, and  all  orders  for  money,  or  other  thing 
of  value,  may  be  made  or  drawn  by  telegraph,  and 
shall  have  the  same  force  to  charge  the  maker,  drawer, 
indorser,  or  acceptor,  and  shall  create  the  same  rights 
and  equities  in  favor  of  the  payee  and  other  parties 
to  the  paper  entitled  to  days  of  grace,  as  if  duly 
made  and  delivered  in  writing  ;  if  the  genuineness 
or  execution  of  the  instrument  is  denied  under  oath, 
the  original  instrument  must  be  then  proven. 

It  is  also  provided,  that  instruments  in  writing,  duly 
certified,  by  notaries  public,  commissioners  of  deeds, 

1  Appendix  F. 

[311] 


§  310  THE    TELEGRAPH  [PART  II. 

or  clerks  of  courts,  to  be  genuine  within  their  per- 
sonal knowledge,  may,  together  with  the  certificate, 
be  sent  by  telegraph,  and  the  telegraphic  copy  shall 
primd  facie  have  the  same  force  and  effect  as  the 
original,  and  the  burden  of  proof  shall  rest  with  the 
party  denying  the  genuineness  and  due  execution  of 
the  original. 

Provision  is  also  made  for  the  transmission  by 
telegraph  of  writs  for  the  arrest  of  criminals,  and  of 
writs  or  other  process  in  civil  cases.  It  is  provided 
in  reference  to  notes,  bills,  orders,  etc.,  transmitted  by 
telegraph,  that  the  original  message  shall  be  preserved 
in  the  office  from  which  it  is  sent ;  and  in  the  case  of 
writs,  etc.,  that  certified  copies  shall  be  preserved  in  the 
office  from  which  they  are  sent.  Wherever  the  instru- 
ment is  under  seal,  it  may  be  expressed  in  the  telegra- 
phic copy  by  the  letters  "  L.  S."  or  the  word  "  seal." 

Similar  provisions  are  also  to  be  found  in  the  stat- 
utes of  Oregon.1 

§  309.  These  are  important  provisions ;  and  the 
rapid  extension  of  telegraph  lines  over  every  part 
of  the  country,  and  the  great  facilities  they  afford 
in  communications  of  every  description,  will  probably 
cause  the  provisions  of  the  statutes  of  California  and 
Oregon  to  be  incorporated  into  the  laws  of  the  dif- 
ferent States,  and  of  England. 

§  310.  It  may  now  be  considered  as  the  settled  law, 
both  in  England  and  the  United  States,  that  where 
parties  resort  to  the  mail  as  a  medium  of  contract, 
and  a  proposition  is  made  by  letter,  and  an  answer 
accepting  the  proposition  is  deposited  in  the  post- 

1  Appendix  DD. 
[312] 


CHAP.  VI.]  AS    A    MEDIUM    OF    CONTRACT.  §  311 

office,  properly  addressed  to  the  party  making  the 
proposition,  the  contract  is  then  complete,  although 
the  answer  never  reaches  the  proposer.1  This  is  in 
case  where,  up  to  the  time  of  depositing  the  letter  of 
acceptance  in  the  post-office,  the  acceptor  has  received 
no  notice  of  the  withdrawal  of  the  proposition. 

This  doctrine  is,  we  have  said,  the  settled  law  in 
the  United  States,  although  in  the  States  of  Massa- 
chusetts and  Tennessee  a  contrary  doctrine  is  as- 
serted.2 

§  311.  The  question  as  to  how  far  this  principle 
is  applicable  to  the  case  where  the  telegraph  is  used 
as  a  medium  of  contract,  came  before  the  Supreme 
Court  of  New  York,  in  the  case  of  Trevor  &  Colgate 
v.  Wood.3 

Trevor  &  Colgate  were  partners,  dealing  in  specie, 
exchange,  and  bullion,  in  the  city  of  New  York. 

John  Wood  &  Co.  were  partners  engaged  in  a 
similar  enterprise  in  New  Orleans. 

An  arrangement  had  been  made  between  the  re- 
spective firms,  that  if  John  Wood  &  Co.  had  dollars 
to  sell,  they  should  telegraph  to 'the  plaintiffs,  who 
would  answer  whether  they  would  take  them  or  not ; 
and  it  was  agreed  that  the  negotiations  should  be 
conducted  through  the  medium  of  the  telegraph. 

The  correspondence,  however,  was  conducted  both 
by  mail  and  telegraph. 

The  plaintiffs  transmitted  their  messages  by  the 


1  Adams  ».  Lindsell,  1  Barn.  &  Aid.  681 ;  Mactier  v.  Frith,  6  Wend. 
103 ;  Taylor  v.  Merchants'  Insurance  Company,  9  How.  (U.S.)  390. 

2  McCulloch  v.  Eagle  Insurance  Company,  1  Pick.  278.     Gillespie 
v.  Edmonston,  11  Hum.  553.  3  41  Barb.  255. 

[313] 


§  311  THE    TELEGRAPH  [PART  II. 

"  Interior  or  National  Line ; "    the  defendants  sent 
theirs  by  "  The  Seaboard  Telegraph  Line." 

On  the  30th  of  January,  1860,  the  plaintiffs  sent 
the  defendants  the  following  message :  — 

"  To  JOHN  WOOD  &  Co. 

"  At  what  price  will  you  sell  one  hundred  thousand  Mexican 
dollars,  per  next  steamer,  delivered  here  ? 

"  TREVOR  &  COLGATE." 

On  the  31st  of  the  same  month,  the  defendants 
replied  by  telegram :  — 

"  THEVOR  &  COLGATE,  New  York. 

"  Will  deliver  fifty  thousand  at  seven  and  one-quarter,  per 
'  Moses  Taylor.'  Answer.  JOHN  WOOD  &  Co." 

The  word  answer  was  not  on  the  message  when 
delivered  to  the  plaintiff. 

On  the  same  day  the  plaintiff  telegraphed :  — 

"  To  JOHN  WOOD  &  Co. 

"  Your  offer  of  fifty  thousand  Mexicans  at  seven  and  one-quar- 
ter accepted.  Send  more  if  you  can." 

"  TREVOR  &  COLGATE." 

The  plaintiffs  at  the  same  time  acknowledged  the 
receipt  of  the  defendants'  message  by  mail,  with  a 
copy  of  their  telegraphic  reply  thereto. 

The  defendants,  likewise,  had  on  the  same  day 
written  by  mail  to  the  plaintiffs,  copying  their  tele- 
gram, and  saying, — 

"  If  you  accept  our  offer  at  seven  and  one-quarter,  we  will  ship 
you  by  same  steamer.  •  We  await  your  answer  to  our  despatch  of 
to-day." 

On  1st  February,  1860,  the  plaintiffs  again  tele- 
graphed :  — 

[314] 


CHAP.  VI.]  AS    A   MEDIUM    OF    CONTRACT.  §  312 

"  To  JOHN  WOOD  &  Co. 

"  Accepted  by  telegraph  yesterday  your  offer  for  fifty  thousand 
Mexicans.  Send  us  as  many  more,  same  price.  Reply. 

"  TREVOR  &  COLGATE." 

§  312.  In  consequence  of  some  derangement  of  the 
line  used  by  the  plaintiff,  this  message,  and  the  one  of 
the  31st  of  January,  did  not  reach  defendants  until 
ten  o'clock  A.M.  of  February  4th. 

The  derangement  of  the  lines  was  not  reported  to 
the  plaintiffs  until  February  4th. 

On  February  3d  defendants  telegraphed :  — 

"  MESSRS.  TREVOR  &  COLGATE,  New  York. 

"  No  answer  to  our  despatch  of  31st.     Dollars  are  sold. 

"JOHN  WOOD  &  Co." 

And  wrote  to  the  same  effect  by  mail  the  same 
day. 

The  plaintiffs  received  this  despatch  February  3, 
and  answered  the  same  day  as  follows :  — 

"  To  JOHN  WOOD  &  Co. 

"  Your  offer  was  accepted  on  receipt,  and  again  the  next  day. 
The  dollars  must  come,  or  we  will  hold  you  responsible.  Reply. 

"TREVOR  &  COLGATE." 

The  next  day  the  plaintiffs  again  telegraphed : — 

"  To  JOHN  WOOD  &  Co. 

"  Telegraph  company  reports  line  down  on  31st.  Hence  the- 
failure  of  our  two  messages.  We  sold  the  dollars,  and  must  have 
them  by  this  or  the  next  steamer,  as  we  are  liable  for  damages. 
Don't  fail  to  send  the  dollars  at  any  price,  Will  write  to-day. 

"TREVOR  &  COLGATE." 

On  the  same  day  the  defendants  telegraphed :  — 

"  To  TREVOR  &  COLGATE. 

"  No  dollars  to  be  had.  We  may  ship  by  steamer,  12th,  as  you 
propose,  if  we  have  them.  JOHN  WOOD  &  Co." 

[315] 


§  314  THE    TELEGRAPH  [PART  II. 

It  was  insisted  for  the  defence,  that  the  telegraph 
company  employed  by  the  plaintiffs  was  the  agent  of 
the  plaintiffs,  and  the  delay  in  transmitting  the  mes- 
sages was  the  fault  of  this  agent,  and  that  the  defen- 
dants were  therefore  justified  in  selling  the  dollars. 

§  313.  The  Court,  however,  decided  the  case  upon 
the  ground  that  there  was  no  contract  completed 
between  the  parties  at  the  time  the  defendants  sold 
the  dollars  ;  and  this  was  the  main  question  discussed 
in  the  argument. 

It  was  held,  that  in  this  case  there  was  no  aggre- 
gatio  mentium,  in  respect  to  the  purchase  and  sale  of 
the  dollars ;  that  the  plaintiffs  must  be  regarded  as 
having  undertaken  to  bring  home  to  the  defendants 
knowledge  of  their  acceptance  of  the  offer  made,  the 
parties  having  previously  agreed  that  their  negoti- 
ations should  be  by  telegraph ;  that  this  was,  in 
effect,  a  warranty  by  each  party  that  his  communi- 
cation should  be  received  by  the  other ;  that  it  could 
not  be  supposed  that  the  parties  were  willing  to  incur 
the  hazard  of  the  safe  delivery  of  the  respective  mes- 
sages. 

§  314.  The  Court  further  held,  that  the  communi- 
cation is  only  initiated  when  it  is  delivered  to  the 
telegraph  operator,  and  is  only  complete  when  it 
comes  to  the  possession  of  the  party  to  whom  it  is 
addressed ;  that  the  rule  established  by  the  au- 
thorities, in  relation  to  contracts  made  by  letters  sent 
through  the  mail,  is  not  applicable  to  communications 
sent  by  telegraph ;  and  the  reason  assigned  for  this 
distinction  is, -that  the  post-office  is  a  public  insti- 
tution, and  the  officers  who  direct  its  operations  are 

[316] 


CHAP.  VI.]    AS  A  MEDIUM  OF  CONTRACT.        §  314 

regulated  by  law,  and  the  violation  of  this  law  is 
punished  criminally ;  while,  on  the  other  hand,  the 
telegraph  is  controlled  by  private  enterprise,  and 
the  operators  of  the  telegraph  are  responsible  to 
those  who  employ  them  for  the  proper  performance 
of  their  services  ;  and  that  the  telegraph,  which  is 
conducted  by  private  enterprise,  could  not  be  so 
clothed  with  a  public  official  character,  as  to  make 
the  receipt  of  a  message  at  the  office  of  the  telegraph 
operator  for  transmission,  of  the  same  effect  in  re- 
lation to  the  acceptance  of  an  oifer,  as  the  depositing 
of  a  letter  in  the  post-office,  and  as  the  actual  de- 
livery of  the  message  would  have  been.1 

1  The  opinion  was  delivered  by  Leonard,  J.,  who  said,  "  There  was 
never  an  aygregatio  mentium,  or  meeting  of  the  minds  of  the  parties  in 
respect  of  the  purchase  and  sale  of  the  dollars  in  question.  The  plain- 
tiffs failed  to  notify  the  defendants  of  the  acceptance  of  their  offer  until 
after  the  defendants  had  countermanded  or  recalled  it. 

"  The  plaintiffs  must  be  regarded  as  having  undertaken  on  their  part 
to  bring  to  the  defendant  the  knowledge  of  their  acceptance  or  refusal 
of  the  offer  made. 

"  The  parties  had  agreed  beforehand  that  their  communication  should 
be  made  by  telegraph. 

"  This  was  in  effect  a  warranty  by  each  party  that  his  communication 
to  the  other  should  be  received. 

"  It  cannot  be  supposed  that  the  party  who  was  to  receive  the  com- 
munication was  willing  to  incur  the  hazard  of  a  safe  delivery  of  the 
message  of  the  other  party  with  whom  he  was  in  treaty,  through  the 
medium  of  the  telegraph. 

"  The  communication  is  only  initiated  on  its  delivery  to  the  telegraph 
operator.  It  is  completed  when  it  comes  into  possession  of  the  party 
for  whom  it  is  designed. 

"  We  think  that  the  rule  that  has  been  established  by  the  courts  in 
respect  to  contracts  made  by  letters  sent  through  the  mail,  is  not  appli- 
cable to  communications  by  telegraph.  (Mactier  v.  Frith,  6  Wend.  103. 
Vasser  v.  Camp,  1  Kernan,  441.) 

"  The  public  post-office  is  governed  by  no  private  interests.  The 
officers  who  direct  its  operations  are  regulated  by  law,  and  its  violation 
is  punished  criminally.  The  operators  of  the  telegraph  are  appointed  or 

[317] 


§  317  THE    TELEGRAPH  [PART  II. 

§  315.  The  question  here  presented  for  determina- 
tion is  one  of  great  practical  importance  in  respect  to 
negotiations  through  the  medium  of  the  telegraph, 
and  may  be  expected  to  be  brought  before  the  courts 
frequently  in  the  future. 

It  is  of  the  first  importance  that  this  point  should 
be  clearly  and  definitely  settled,  so  that  parties  may 
know  how  to  carry  on  their  negotiations  by  telegraph. 

§  316.  If  the  principle  laid  down  in  the  above  case 
can  be  sustained,  it  must  be  upon  the  ground  that  the 
telegraph  company  was  the  agent  who  transmitted 
the  message  of  acceptance,  and  that  until  it  be  actually 
received  by  the  other  party,  it  is  still  under  the  con- 
trol of  the  party  proposing  to  accept,  and  subject 
to  be  countermanded  or  recalled  by  him. 

§  317.  Whether  the  mail  and  the  telegraph  stand 
upon  the  same  footing  in  relation  to  the  completion 
of  the  contract  made  through  them,  is  a  question  not 
altogether  free  of  difficulty. 

The  principle  upon  which  it  is  held,  that  an  accept- 
ance of  a  proposition  made  by  letter  is  complete  and 
the  contract  complete,  when  the  letter  of  acceptance 
is  placed  in  the  post-office,  does  riot  seem  to  depend 
upon  the  fact  that  the  mail  is  a  governmental  institu- 
tion, over  which  the  individual  has  no  control. 

employed  by  private  enterprise,  and  are  responsible  to  those  who  employ 
them  for  the  proper  performance  of  their  Cervices. 

"There  are  also  other  distinctions.  The  telegraph  companies  have 
been  conducted,  so  far  as  has  come  to  my  knowledge,  with  great  integ- 
rity and  fidelity ;  but  an  institution  of  that  description  cannot,  while  con- 
ducted by  private  enterprise,  be  so  clothed  with  a  public  official  character 
as  to  make  the  receipt  of  a  communication  at  the  office  of  the  telegraph 
company  of  the  same  effect  in  relation  to  the  acceptance  of  an  offer  by  a 
contracting  party  as  the  actual  delivery  of  it  could  have." 
[318] 


CHAP.  VI.]  AS    A    MEDIUM    OF    CONTRACT.  §  319 

It  stands  upon  the  same  principle  as  all  other  con- 
tracts ;  and  that  is,  To  constitute  a  contract  there 
must  be  an  agreement,  a  meeting  of  the  minds  of  the 
respective  parties. 

This  is  the  essential  element  of  a  contract,  whether 
the  agreement  is  consummated  by  the  parties  in  the 
presence  of  each  other,  or  through  the  instrumentality 
of  communications  made  from  a  distance. 

§  318.  Different  states  of  circumstances  may  require 
different  characters  of  proof,  to  show  this  meeting  or 
agreement  of  minds ;  but  still  the  question  in  all 
cases  is  the  same :  Was  there  in  fact  a  concurrence 
of  intention,  or  meeting  of  minds,  upon  the  subject- 
matter  of  the  contract  I 

§  319.  In  commenting  upon  this  principle,  in 
Mactier  v.  Frith,1  the  learned  judge  who  delivered 
the  opinion,  says,  "  What  will  constitute  an  accept- 
ance will  depend  in  a  great  measure  upon  circum- 
stances. 

"  The  mere  determination  of  the  mind  unacted  upon 
can  never  be  an  acceptance.  When  the  offer  is  by 
letter,  the  usual  mode  of  acceptance  is  the  sending  of 
a  letter  announcing  a  consent  to  accept.  Where  it  is 
made  by  a  messenger,  a  determination  to  accept  re- 
turned through  him  or  sent  by  another  would  seem  to 
be  all  the  law  required,  if  the  contract  may  be  con- 
summated without  writing.  There  are  other  modes 
which  are  equally  conclusive  upon  the  parties.  Keep- 
ing silence  under  certain  circumstances  is  an  assent  to 
a  proposition ;  any  thing  that  shall  amount  to  a  formal 
determination  to  accept,  communicated,  or  put  in  a 

1  6  Wend.  103. 

[319] 


§  320  THE   TELEGRAPH  [PART  II. 

proper  way  to  be  communicated,  to  the  party  making 
the  offer,  would  doubtless  complete  the  contract;  but 
a  letter  written  would  not  be  an  acceptance,  so  long 
as  it  remained  in  the  possession,  or  under  the  control, 
of  the  writer.  An  acceptance  is  a  distinct  act  of  one 
party  to  the  contract,  as  much  as  the  offer  is  of  the 
other. 

"  The  knowledge,  by  the  party  making  the  offer,  of 
the  determination  of  the  party  receiving  it,  is  not  an 
ingredient  of  an  acceptance.  It  is  not  compounded 
of  an  assent  by  one  party  to  the  terms  offered,  and  a 
knowledge  of  that  assent  by  the  other." 

§  320.  The  learned  judge  combats  the  view  taken 
in  McCulloch  v.  The  Eagle  Fire  Insurance  Co.,1  in 
the  Supreme  Court  of  Massachusetts,  which  was, 
that  the  minds  of  the  contracting  parties  must  not 
only  meet  on  the  subject  of  the  contract,  but  they 
must  know  the  fact ;  and  proceeds  to  say  that  the 
contract  cannot  be  obligatory  upon  one  before  it  is  on 
the  other ;  that  there  must  be  a  precise  time  when 
the  obligation  attaches  to  both,  and  this  time  must 
happen  when  one  of  the  parties  cannot  know  that 
the  obligation  has  attached  to  him ;  the  obligation 
does  not  therefore  arise  from  a  knowledge  of  the 
present  concurrence  of  the  wills  of  the  contracting 
parties ;  and  if  more  than  a  concurrence  of  minds 
upon  a  distinct  proposition  is  required,  to  make  an 
obligatory  contract,  the  definition  of  what  constitutes 
a  contract  is  not  correct.  Instead  of  being  the  meet- 
ing of  the  minds  of  the  contracting  parties,  it  should 
be  a  knowledge  of  this  meeting ;  and  he  refers  to  the 
1  i  Pick.  278. 

[320] 


CHAP.  VI.]  AS    A    MEDIUM    OF    CONTRACT.  §321 

cases  of  Adams  v.  Lindsell,1  and  Eliason  v.  Henshaw.2 
as  supporting  the  view  that  a  knowledge  of  the  con- ' 
currence  of  minds  is  not  an  essential  element  of  a 
contract. 

In  the  same  case,  it  was  said  by  Mr.  Senator  May- 
nard,  in  support  of  this  view,  that  when  the  party 
accepting  receives  information  that  his  acceptance  is 
received  and  offer  confirmed,  he  is  in  equal  uncer- 
tainty as  to  the  meeting  of  minds,  because  there  may 
have  been  a  revocation  of  that  confirmation.  Such  a 
negotiation  would  be  endless,  for  the  parties  could 
never  know  that  their  minds  met. 

§  321.  This  question  came  before  the  Supreme  Court 
of  the  United  States  in  the  case  of  Tayloe  v.  The 
Merchants'  Fire  Insurance  Company,3  where  the  rule 
laid  down  in  Mactier  v.  Frith  is  recognized  as  the 
correct  enunciation  of  the  principle,  and  the  doctrine 
of  McCulloch  v.  The  Eagle  Fire  Insurance  Company 
was  expressly  repudiated. 

It  is  said  in  this  case  that  in  a  case  of  negotiations 
through  the  medium  of  the  mail,  on  the  acceptance 
of  the  terms  proposed  transmitted  by  due  course  of 
mail,  the  minds  of  both  parties  have  met  on  the  sub- 
ject, in  the  mode  contemplated  at  the  time  of  entering 
upon  the  negotiation,  and  the  contract  becomes  com- 
plete. 

The  party  to  whom  the  proposal  is  addressed  has  a 
right  to  regard  it  as  a  continuing  offer  until  it  shall 
have  reached  him,  and  shall  be  in  due  time  accepted 
or  rejected. 

1  1  Barn.  &  Aid.  681.  2  4  Wheat.  225. 

3  9  Howard,  390. 

21  [321] 


§  322  THE    TELEGRAPH  [PART  II. 

"Upon  any  other  view  the  proposal  amounts  to 
nothing,  as  the  acceptance  would  be  but  the  adoption 
of  the  terms  tendered,  to  be,  in  turn,  proposed  by  the 
applicant  to  the  company  for  their  approval  or  rejec- 
tion. 

"For,  if  the  contract  is  still  open  until  the  company 
is  advised  of  an  acceptance,  it  follows,  of  course,  that 
the  acceptance  may  be  repudiated  at  any  time  before 
the  notice  is  received.  Nothing  is  effectually  accom- 
plished by  the  act  of  acceptance." 

§  322.  The  Court  proceeds  to  say  that  the  fallacy  of 
the  argument  consists  in  the  assumption  that  the  con- 
tract cannot  be  consummated  without  a  knowledge, 
on  the  part  of  the  proposer,  that  the  offer  had  been 
accepted ;  but  that  a  little  reflection  will  show  that  in 
all  cases  of  contracts  entered  into  by  parties  at  a  dis- 
tance by  correspondence,  it  is  impossible  that  both 
should  have  a  knowledge  of  it  the  moment  it  becomes 
complete.  This  can  only  exist  where  both  parties  are 
present ;  and  that  it  seems  more  consistent  with  the  acts 
and  declarations  of  the  parties  to  consider  it  complete 
on  the  transmission  of  the  acceptance  of  the  offer  in 
the  way  they  themselves  contemplated,  instead  of 
postponing  its  completion  till  notice  of  such  acceptance 
has  been  received  and  assented  to. 

Therefore  such  acceptance,  transmitted  by  due 
course  of  mail,  is  regarded  as  closing  the  bargain,  and 
it  makes  no  difference  whether  it  is  ever  received  or 
not. 

These  principles,  and  this  mode  of  reasoning  by 
which  they  are  established,  we  think  will  apply  with 
equal  force  to  negotiations  through  the  medium  of  the 

[322] 


CHAP.  VI.]  AS    A    MEDIUM    OF    CONTRACT.  §  324 

telegraph,  as  well  as  to  cases  where  they  are  conducted 
by  letter  through  the  mail. 

§  323.  It  may  with  much  force  be  urged  that  the  act 
of  Trevor  &  Colgate,  in  transmitting  their  reply,  ac- 
cepting the  defendants'  offer,  completed  the  contract 
without  any  reference  to  whether  the  message  of  ac- 
ceptance was  in  fact  received. 

The  acceptance  being  as  much  an  ingredient  of  the 
contract  as  the  offer,  should  not  the  party  accepting 
have  knowledge  that  his  message  of  acceptance  has 
been  received  by  the  party  offering?  Has  he  not  just 
the  same  right  to  know  that  the  acceptance  has  come 
to  the  knowledge  of  the  offering  party,  as  the  offering 
party  has  to  know  that  his  offer  has  come  to  the  knowl- 
edge of,  and  been  received  by,  the  other  party  1 

It  is  true  that  the  party  must  in  fact  accept,  but  this 
is  a  very  different  thing  from  knowledge  on  the  part  of 
the  offering  party,  that  the  acceptance  has  been  made ; 
for,  if  this  be  made  essential,  it  destroys  the  possi- 
bility of  completing  contracts  between  parties  at  a 
distance. 

§  324.  Here  was  an  act  of  Trevor  &  Colgate,  pro- 
fessing to  accept  the  defendants'  offer.  The  message 
of  acceptance  was  written  out  and  delivered  to  the  tele- 
graph company,  with  directions  for  its  transmission  to 
the  defendants,  together  with  a  payment  of  the  charges 
of  transmission.  And,  moreover,  this  was  in  the  mode 
contemplated  by  and  agreed  upon  between  the  par- 
ties. It  may  be  observed  that  the  offering  message 
has .  the  word  "  Answer  "  appended ;  we  understand 
this  word  when  so  appended  is  used  merely  to  indicate 

to  the  telegraph  company  that  it  is  a  reply  to  a  pre- 
1328] 


§  325  THE   TELEGRAPH  [PART  II. 

vious  message,  in  order  to  avoid  prepayment  of  charges ; 
and  hence  this  word  was  not  on  the  message  delivered 
to  the  other  party.  It  is  true  the  second  message, 
informing  defendant  that  plaintiff  had  accepted  the 
offer  by  a  previous  message,  has  the  word  '•'•Reply  " 
attached  to  it ;  but  it  will  be  observed  that  at  that 
tune  the  accepting  despatch  had  not  only  been  trans- 
mitted, but  this  despatch  made  an  additional  request : 
"  Send  as  many  more  at  the  same  price."  And  the 
conclusion  might  well  be  drawn,  that  the  word  "  Re- 
ply "  had  reference  to  this  request. 

§  325.  The  main  difficulty  seems  to  be  in  the  con- 
sideration that,  upon  the  assumption  that  the  telegraph 
company  who  transmitted  the  accepting  message  was 
the  agent  of  that  party,  and  that  therefore  the  message 
was  subject  to  be  recalled,  or  its  delivery  counter- 
manded at  any  time  before  its  actual  delivery,  therefore 
there  could  be  no  acceptance  in  contemplation  of  law 
until  the  party  who  transmitted  the  accepting  message 
had  entirely  lost  his  right  to  control  it,  which  would 
not  be  until  its  actual  delivery.  There  is  some  plausi- 
bility in  this  reasoning,  and  it  might  be  assumed  in  the 
case  above,  that  as  each  party  used  the  lines  of  differ- 
ent and  independent  companies,  each  company  was 
the  agent  of  the  party  who  transmitted  by  its  line. 

But  let  us  suppose  the  case  where  the  parties  agreed 
to  conduct  their  negotiations  through  the  telegraph, 
and  they  do  in  fact  use  the  same  line ;  the  question 
would  then  arise,  Was  not  the  telegraph  company  the 
common  agent  of  both  parties,  and  would  not  such 
case  be  in  all  respects  analogous  to  the  sending  of 
letters  through  the  mail  ? 

[324] 


CHAP.  VI.]  AS    A    MEDIUM    OF    CONTRACT.  §  326 

But  even  in  the  case  above  given,  where  different 
lines  may  have  been  used,  if  the  view  there  taken  be 
correct,  it  must  have  the  effect  of  very  much  em- 
barrassing negotiations  by  telegraph,  and  will  go  far 
toward  destroying  their  usefulness  as  a  medium  of 
contract. 

§  326.  On  the  other  hand,  if  the  view  should  be 
taken  in  the  future  adjudications  upon  this  subject, 
that,  where  the  party  to  whom  the  offer  is  made  de- 
liberately delivers  an  accepting  message  to  the  tele- 
graph company  and  pays  the  charges  thereon,  or 
otherwise  complies,  with  their  regulations  upon  this 
subject,  with  the  view  that  the  operator  shall  put  the 
message  on  its  transit  over  the  wires  to  the  other 
party,  such  act  will  amount  to  an  acceptance  and 
complete  the  contract,  it  will  very  much  facilitate 
commercial  transactions,  and  make  the  telegraph  a 
very  useful  instrument  of  communication  in  all  nego- 
tiations conducted  between  parties  at  a  distance  from 
each  other.1 

1  In  the  case  of  Taylor,  defendant  in  error  v.  Steamboat  Robert 
Campbell,  20  Missouri  (5  Bennett)  R.  25-1,  the  case  seems  to  have  been 
decided  upon  the  assumption  that  depositing  the  accepting  message  with 
the  operator,  and  its  being  forwarded  by  him,  completed  the  contract, 
although  the  point  of  inquiry  in  the  case  seems  to  have  been  one  of 
evidence,  whether  the  accepting  message  was  sent  by  the  defendant  in 
error. 

At  the  trial,  the  telegraph  operator  at  Booneville  testified  that  the 
plaintiff  delivered  in  his  office  the  following  despatch,  which  was  for- 
warded to  Lexington  on  the  day  of  its  date :  — 

"Booneville,  December  11,  1852. 
"To  ROBERT  CAMPBELL. 

"  Make  room  for  400  hogs  at  fair  rates.  WM.  TAYLOR." 

The  operator  at  Lexington  testified  that  this  message  was  received  at 
his  office  on  the  day  of  its  date,  and  on  same  day  was  delivered  to  the 

[325] 


§  327  THE   TELEGRAPH  [PART  II. 

§  327.  We  think  the  true  principle  upon  which 
the  question  must  rest  is,  that  the  positive  and  un- 
equivocal act  of  the  party  manifesting  an  intention 
to  accept,  constitutes  the  completion  of  the  contract 
in  all  cases ;  that  the  question  of  agency  is  not  prop- 
erly involved  in  its  consideration. 

If  the  parties  agree  to  conduct  their  negotiations  by 

officers  of  the  steamboat  "  Robert  Campbell ; "  and  that  on  the  next  flay 
the  following  message  was  deposited  in  his  office  and  forwarded  to  Boone- 
ville :  — 

"Lexington,  December  12. 
"  Will  take  your  hogs.     Be  down  to-morrow  morning. 

"  CAPT.  EDDS." 

Upon  this  testimony  the  plaintiff  was  permitted  to  read  the  messages  in 
evidence. 

From  the  report  of  the  case  it  does  not  appear  that  any  evidence  was 
introduced  to  show  that  the  accepting  message  was  received  by  the  plain- 
tiff. It  is  said  in  the  opinion,  "  When  men  consent  to  use  the  telegraph 
for  the  purpose  of  making  an  agreement,  there  is  no  hardship  in  submit- 
ting to  a  jury,  as  evidence  of  their  consent  to  such  agreement,  those  facts 
and  circumstances  which  are  received  by  and  acted  on  by  mankind  in 
communicating  through  that  medium.  Here  the  defence  does  not  turn 
upon  any  imposition  or  forgery  on  the  part  of  the  agents  of  the  telegraph, 
but  the  plaintiff,  by  the  pleadings,  is  put  to  the  proof  of  the  contract  on 
which  he  has  sued.  The  evidence  is  complete  to  show  that  a  communi- 
cation was  made  by  the  plaintiff  to  the  defendant ;  but  the  difficulty  arises 
in  showing  that  the  answer  to  the  communication  was  from  the  agent  of 
the  defendant.  The  telegraph  agent  testified  that  the  despatch  received 
from  the  plaintiff  was  delivered  to  the  officers  of  the  steamboat  '  Robert 
Campbell,'  and  a  despatch  in  answer  to  that  of  the  plaintiff  was  deposited 
in  his  office,  to  be  forwarded  to  the  plaintiff,  which  was  done  on  the  next 
day. 

"If,  under  such  circumstances,  a  person  had  received  a  despatch  in 
answer  to  one  forwarded  by  him,  he  would  not  have  failed  to  act  upon  it. 
His  contract  would  have  been  based  upon  the  faith  usually  given  to  the 
correctness  and  fidelity  with  which  such  business  is  transacted  by  the 
agents  of  the  telegraph." 
[326] 


CHAP.  VI.]  AS    A    MEDIUM   OF    CONTRACT.  §  327 

telegraph,  the  act  of  delivering  the  message  of  ac- 
ceptance for  transmission  may  well  be  considered  as 
such  an  act  indicating  assent,  as  was  contemplated 
by  the  parties,  no  matter  to  what  line  delivered.  If 
there  be  no  such  agreement,  and  the  parties  do  in  fact 
use  this  medium,  the  intention  to  accept  is  just  as 
satisfactorily  manifested  by  the  act  of  depositing  the 
message  in  the  telegraph  office,  as  by  depositing  a 
letter  in  the  post-office.1 


1  After  the  text  was  written,  we  received  the  February  number,  1868, 
of  the  Am.  Law.  Reg.  (N.S.),  vol.  7,  No.  IV.,  in  which  (see  p.  215) 
this  case  was  reversed  in  the  Court  of  Appeals.  Our  comments  upon 
the  opinion  of  the  Supreme  Court  are  sustained  and  strengthened  by 
this  opinion,  which  may  be  considered  as  establishing  the  principle  that 
a  contract  is  consummated  by  any  distinct  unequivocal  act  which  shows 
the  concurrence  of  the  minds  of  the  parties  upon  a  distinct  proposition; 
that  sending  a  letter  announcing  a  consent  to  the  proposal  is  a  sufficient 
manifestation  of  the  acceptance ;  and  that  sending  a  despatch  is  equally 
conclusive.  Any  thing  that  shall  amount  to  a  manifestation  of  a  formed 
determination  to  accept,  communicated,  or  put  in  the  proper  way  to  be 
communicated  to  the  party  making  the  offer,  would  doubtless  complete 
the  contract,  as  held  in  Mactier  v.  Frith,  6  Wend.  103. 

The  Court  say  (p.  218),  "It  was  agreed  between  these  parties  that 
their  business  should  be  transacted  through  the  medium  of  the  telegraph. 
The  object  of  this  agreement  was  to  substitute  the  telegraph  for  other 
methods  of  communication,  and  to  give 'to  their  transactions  by  it  the 
same  force  and  validity  they  would  derive  if  they  had  been  performed 
through  other  agencies. 

"In  accordance  with  this  agreement,  the  offer  was  made  by  telegraph 
to  the  appellants  in  New  York ;  and  the  acceptance,  addressed  to  the 
respondents  in  New  Orleans,  was  immediately  despatched  from  New 
York,  by  order  of  the  appellants. 

"It  cannot,  therefore,  be  said  that  the  appellants  did  not  put  their 
acceptance  in  a  propel-  way  to  be  communicated  to  the  respondents,  for 
they  adopted  the  method  of  communication  which  had  been  selected  by 
prior  agreement  between  them,  as  that  by  means  of  which  their  business 
should  be  transacted. 

"  Under  these  circumstances,  the  sending  of  the  despatch  must  be 
regarded  as  an  acceptance  of  the  respondents'  offer,  and  thereupon  the 

[327] 


§  329  THE    TELEGRAPH  [PART  II. 

§  328.  In  the  case  we  have  been  considering,  Tre- 
vor v.  Wood, it  is  further  said,  "The  plaintiffs  failed  to 
notify  the  defendants  of  their  acceptance  of  the  offer 
until  after  the  defendants  had  countermanded  or  re- 
called it."  The  correctness  of  this  proposition  will 
depend  upon  what  shall  constitute  an  acceptance  in 
negotiations  by  telegraph. 

If  the  actual  delivery  of  the  message  of  acceptance 
to  the  offering  party  is  necessary  to  the  completion  of 
the  contract,  then  the  above  is  correct ;  but  otherwise 
not. 

§  329.  The  principle  of  law  in  such  cases  is,  that 
if  the  acceptance  is  made  before  the  accepting  party 
has  knowledge  of  the  recall  of  the  offer,  the  recall 
comes  too  late,  and  the  contract  is  complete ;  unless 
the  offer  is  limited  to  a  specified  time,  or  to  the  hap- 
pening of  a  particular  event. 

An  offer  by  letter  is  a  continuing  offer  until  the 
letter  be  received,  and  for  a  reasonable  time  thereafter, 
and  during  such  time  the  party  to  whom  it  is  ad- 
dressed may  accept  or  reject  the  offer.  It  is  true  the 
offer  may  be  withdrawn  at  any  moment,  but  in  con- 
templation of  law  it  is  not  withdrawn  until  the  other 

contract  became  complete."    This  case  is  reported  in  36  N.Y.  (9  Tiffany) 
R.  307. 

Other  actions,  say  the  Court  in  Mactier  v.  Frith,  are  equally  conclu- 
sive upon  the  parties.  Keeping  silence,  under  certain  circumstances,  is 
an  assent  to  a  proposition. 

Thus  the  telegraph  is  recognized  as  a  means  of  making  contracts,  not 
because  of  its  character  or  its  modes  of  transmitting  intelligence,  but 
simply  because  sending  an  acceptance,  or  putting  it  in  the  way  to  be 
sent,  is  an  overt  act,  clearly  manifesting  the  intention  of  the  party  send- 
ing it  to  close  with  the  offer  of  him  to  whom  it  is  sent,  thus  making  that 
aggregatio  mentium  which  is  necessary  to  constitute  a  contract. 
[328] 


CHAP.  VI.]  AS    A    MEDIUM    OF    CONTRACT.  §  330 

party  has  notice  of  such  withdrawal.  It  is  regarded 
as  a  continuing  offer  during  every  moment  of  time 
until  the  other  party  has  notice  of  such  withdrawal ; 
and  if  he  accepts  before  he  receives  such  notice,  the 
contract  is  complete. 

§  330.  The  Court  in  this  case  further  held,  that  the 
parties  having  previously  agreed  that  their  negotia- 
tions should  be  through  the  medium  of  the  telegraph, 
this  was,  in  effect,  a  warranty  by  each  party  that  his 
communication  should  be  received  by  the  other. 

We  should  think  it  the  better  opinion  that  where 
there  is  a  previous  agreement  that  the  negotiations  in 
reference  to  a  particular  matter  shall  be  by  telegraph, 
the  proper  construction  of  this  agreement  is,  that  the 
telegraph  shall  be  used  according  to  the  course  of 
business  of  telegraph  companies,  and  in  accordance 
with  their  rules  and  regulations  ;  and  the  obligation 
resting  upon  the  respective  parties  is  to  deliver  writ- 
ten messages  properly  addressed,  to  the  telegraph 
operator  for  transmission,  and  to  pay  the  usual  and 
proper  charges  for  the  same,  provided  prepayment  is 
required  by  the  regulations  of  the  company.  And 
that  such  agreement  implies  no  further  duty,  and 
imposes  no  obligation  upon  the  parties  to  see  to  the 
delivery  of  the  respective  messages.1 


1  See  Trevor  w.  Wood,  36  N.Y.  R.  307.  In  commenting  upon  this 
case,  as  decided  by  the  Supreme  Court,  41  Barb.  255,  Mr.  Redfield 
expressed  his  dissent,  vol.  ii.  §  189  6,  subd.  8,  of  his  valuable  work  on 
Railways.  In  speaking  of  the  attempt  to  establish  a  rule  for  tele- 
graph contracts,  different  from  those  negotiated  by  mail,  he  says,  "  It 
seems  to  us  that  the  same  rules  will  in  the  main  apply.  .  .  .  But  we  do 
not  comprehend  the  existence  of  any  such  distinction.  Both  are  the 
agents  of  the  party  employing  them." 

[329] 


§  332  THE    TELEGRAPH  |>ART  II. 

Here  questions  with  reference  to  the  delivery  of 
messages  bear  upon  the  completion  of  the  contract, 
and  only  become  important  in  deciding  whether  or 
not  the  telegraph  company  is  so  far  the  agent  of 
the  party  transmitting  a  message  of  acceptance,  as 
to  cause  the  message  to  remain,  in  contemplation  of 
law,  in  his  custody  and  under  his  control,  until  an 
actual  delivery.  We  have  already  offered  our  views 
upon  this  point. 

§  331.  An  important  and  interesting  question  was 
discussed  in  this  case,  which  was,  whether  or  not  such 
contracts  are  void  within  the  Statute  of  Frauds ;  it 
was  not  decided,  however  being  unimportant  in  the ' 
view  the  Court  took  of  the  case.1 

There  can  be  little  doubt  but  that  in  all  cases  of 
contract  made  through  the  medium  of  the  telegraph, 
the  signing  of  the  message  either  by  the  sender  him- 
self, or  it  being  written  down  by  the  operator  in  his 
presence,  will  be  held  to  be  sufficient,  in  all  cases  of 
contracts,  under  the  Statute  of  Frauds. 

§  332.  The  manipulations  of  the  operator  by 
means  of  which  the  sender's  name  becomes  appended 
to  the  message,  are  equivalent  to  the  sender's  actual 
signature,  and  the  translation  of  the  message  by  the 
operator  at  the  delivery  station,  from  the  symbols 
back  into  the  vernacular,  will  be  considered  as  the 
signature  of  the  sender  of  the  message,  appended  by 
his  lawfully  authorized  agent.  The  principle  which 
will  sustain  the  notings  of  the  auctioneer  as  a  suffi- 
cient memorandum  within  the  Statute  of  Frauds  to 

1  But  it  has  since  been  decided  in  this  same  case,  on  appeal,  to  have 
been  a  writing  within  the  Statute  of  Frauds,  36  N.Y.  R.  307. 
[330] 


CHAP.  Vi:]  AS    A    MEDIUM    OF    CONTRACT.  §  333 

bind  the  bidder  at  auction  sales,  upon  the  ground  that 
the  auctioneer  is  the  agent  of  the  purchaser,  will,  we 
think,  sustain  the  position  that  the  telegraph  operator 
is  likewise  the  agent  of  the  sender  of  the  message 
for  this  purpose. 

§  333.  In  the  case  of  N.Y.  &  Washington  Print- 
ing Telegraph  Co.  v.  Dryburg,1  it  was  held  that  the 
telegraph  company  may  be  considered  the  common 
agent  of  both  parties. 

The  principle  seems  to  be  clearly  recognized  in  the 
case  of  Dunning  &  Smith  v.  Eoberts,2  that  where 

1  35  Pa.  State  R.  298. 

2  35  Barb.  R.  463.    The  plaintiffs  were  hardware  merchants  at  Cham- 
plain  ;  the  defendants  resided  at  Chateaugay.     Porter  telegraphed  to 
the  plaintiffs  to  send  him  the  property  mentioned  in  the  complaint.     The 
plaintiffs,  distrusting  Porter's  responsibility,  did  not  send  the  property 
on  his  order.    The  next  day  they  received  a  telegram  purporting  to  come 
from  the  defendant,  directed  to  them,  as  follows :  — 

"To  G.  E.  DUNNING  &  Co. 

"  I  will  be  responsible  for  Porter's  bill  of  goods  ordered  yesterday. 

"A.  ROBERTS." 

Thereupon  they  forwarded  the  property.  It  appeared  further  in  the 
proof  that  the  defendant  authorized  the  message  to  be  sent  in  his  name  ; 
and  that  the  property  was  forwarded  in  pursuance  of  the  despatch,  and 
upon  the  credit  of  the  defendant.  It  seems  that  the  telegraphic  despatch 
was  determined  on  after  considerable  conversation  between  the  defend- 
ant, Porter,  and  one  Hall.  The  regular  telegraph  operator  was  absent. 
One  Edwin  G.  Roberts  sent  the  despatch,  as  he  testified,  for  the  accom- 
modation of  the  parties.  He  stated  that  the  defendant  was  in  the  office 
at  the  time  the  message  was  sent,  and  stated  that  he  sent  the  despatch, 
and  sent  it  as  he  understood  it  at  the  time ;  that  he  wrote  it  down  ;  that 
the  defendant  was  there  when  the  message  was  sent.  The  proof  showed 
satisfactorily  that  the  defendant  was  present,  and  agreed  to  the  message 
as  sent  by  the  person  acting  as  operator. 

The  Court  held  that  Edwin  acted  in  this  matter  as  the  authorized 
agent  of  the  defendant. 

The  Court  say,  "  It  is  insisted  that  the  supposed  liability  of  the  de- 

[331] 


§334  THE   TELEGRAPH  '  [PART  II. 

the  telegraph  is  used  as  the  medium  of  contract  be- 
tween the  parties,  the  operator  is  to  be  regarded  as 
the  agent  of  the  sender  of  the  message.  And  it  fol- 
lows from  this,  that  if  the  contract  is  one  required  to 
be  in  writing  under  the  Statute  of  Frauds,  the  operator 
is  the  agent  of  the  sender  of  the  message  for  this 
purpose.  The  Court  in  this  case  say,  "  The  manipu- 
lations of  the  operator  by  which  the  defendant's  name 
became  appended  to  the  despatch  were  his  own,  and 
were  equivalent  to  an  actual  personal  signing  of  his 
name  with  pen  and  ink."  And  in  this  case  the  mes- 
sage was  orally  delivered  to  the  operator.  The  Court 
held  the  message  to  be  a  sufficient  writing  signed  by 
the  party  to  be  charged,  to  bring  it  within  the  Statute 
of  Frauds. 

§  334.  By  the  statutes  of  Indiana,  California,  and 
Oregon,  contracts  made  by  telegraph  shall  be  deemed 
contracts  in  writing. 

The  Indiana  statute  *  is  as  follows :  — 

"  Contracts  made   by  telegraph   between   two   or 


fendant  is  as  surety  for  Porter,  and  hence  that  the  agreement  or  promise 
is  within  the  Statute  of  Frauds,  and  void. 

"It  is  first  urged  that  the  telegram  was  not  subscribed  by  the  de- 
fendant, nor  by  his  authority.  But  it  has  been  above  determined  that, 
under  the  circumstances  of  this  case,  the  act  of  Edwin  G.  Roberts  in 
forwarding  the  telegram  was  the  act  of  the  defendant.  In  law,  therefore, 
the  manipulations  of  Edwin,  by  which  the  defendant's  name  became  ap- 
pended to  the  despatch,  were  his  own,  and  were  equivalent  to  an  actual 
personal  signing  of  his  name  with  pen  and  ink." 

The  Court  further  held  that  there  was  a  sufficient  expression  of  con- 
sideration upon  the  face  of  the  message  to  satisfy  the  requirement  of  the 
Statute  of  Frauds ;  and  held  further,  that  it  imported  not  a  conditional, 
but  a  direct  and  original  undertaking  or  promise  on  the  part  of  the  de- 
fendant. 

1  Revision  of  1860,  c.  179,  sec.  5.     See  Appendix  L. 
[332] 


CHAP.  VI.]  AS    A    MEDIUM    OF    CONTRACT.  §  335 

more  persons  shall  be  considered  as  contracts  in 
writing." 

The  California  statute  is  the  same,  with  the  proviso 
that  "  they  contain  a  statement  of  the  consideration 
thereof." 

Another  section  is  as  follows : l  — 

"  Contracts  made  by  telegraph  shall  be  deemed  to 
be  contracts  in  writing ;  and  all  communications  sent 
by  telegraph,  and  signed  by  the  person  or  persons 
sending  the  same?  or  by  his  or  their  authority, 
shall  be  held  and  deemed  to  be  communications  in 
writing." 

The  statute  of  Oregon  is  the  same.2 

§  335.  Several  cases  have  come  before  the  courts, 
where  the  question  was  discussed  whether  or  not  the 
messages  between  the  parties  constituted  a  contract. 

In  the  case  of  Kinghorn  v.  The  Montreal  Tele- 
graph Co.,3  the  message  transmitted  was,  "  Will  give 
you  eighty  cents  for  rye." 

The  reply  was,  "  Do  accept  your  offer.  Ship  to- 
morrow fifteen  or  twenty  hundred." 

The  party  making  the  offer  failed  to  receive  the  re- 
ply, but  stated  that  if  it  had  been  received,  the  bargain 
would  have  been  closed  at  eighty  cents  ;  but  that  after 
waiting  two  or  three  days  for  a  reply  and  not  receiving 
any,  the  party  for  whom  he  was  acting  as  agent 
would  not  take  the  rye. 

Thereupon  the  party  sending  the  message  of  accept- 
ance instituted  his  action  against  the  Montreal  Tele- 


1  Act  of  April  18,  1862,  sec.  11.  See  Appendix  F. 
*  Compilation  of  1866,  sec.  17.  See  Appendix  DD. 
3  18  Upper  Canada  (Q.B.)  R.  60. 

[333] 


§  337  THE   TELEGRAPH  [PART  II. 

graph  Company  for  failing  to  transmit  the  message  in 
time. 

§  336.  It  was  held  that  the  plaintiff  was  not  entitled 
to  recover  any  damages  because  there  was  no  contract ; 
that  if  the  message  of  acceptance  had  been  promptly 
transmitted  and  delivered,  there  would  have  been  no 
obligation  upon  the  plaintiff  to  have  shipped  any 
quantity  of  rye,  and  no  obligation  upon  the  other  party 
to  have  accepted  it  if  he  had  done  so,  because  the  first 
message  did  not  specify  the  quantify  of  rye  for  which 
eighty  cents  would  be  given.  To  have  completed  the 
contract,  this  party  must  have  informed  the  plaintiff 
what  quantity  the  party  would  take,  after  he  learned 
that  plaintiff  agreed  to  his  price,  and,  moreover,  that 
the  plaintiff's  message  simply  stated  that  he  would 
ship  fifteen  or  twenty  hundred,  without  specifying 
what,  —  whether  bushels  or  pounds. 

The  plaintiff  claimed  losses  on  two  thousand  one 
hundred  and  two  bushels  of  rye,  but  there  was  noth- 
ing to  show  that  the  party  sending  the  first  message, 
even  if  he  had  received  the  plaintiff's  message,  would 
have  been  bound  to  take  any  such  quantity,  but  would 
have  had  the  right  to  limit  the  quantity  to  any  extent 
he  might  choose.  When  the  plaintiff  named  the 
quantity  he  would  ship,  it  required  a  reply  from  the 
party  who  sent  the  first  message,  accepting  that  quan- 
tity. 

§  337.  There  is  another  reported  case  decided  in 
the  High  Court  of  Errors  and  Appeals  of  Mississippi ; 1 
in  which  it  appeared  that  the  evidence  of  what  was 

1  Williams  t?.  Bicknell,  37  Miss.  R.  682. 
[334] 


CHAP.  VI.]  AS    A    MEDIUM    OF    CONTRACT.  §  338 

claimed  to  be  the  contract  was  a  message  transmitted 
by  telegraph. 

It  appeared  that  the  yellow  fever  broke  out  in  a 
malignant  form  at  a  certain  watering  place,  of  which 
the  defendant  was  part  owner  and  superintendent. 
The  defendant  thereupon  sent  a  message  by  telegraph 
to  a  friend  in  a  neighboring  town,  which  was  as  fol- 
lows :  — 

"There  are  many  cases  of  yellow  fever  at  the  Wells. 
Send  out  a  physician  this  evening  without  fail." 

The  person  who  received  this  message  applied  to 
the  plaintiff,  who  was  a  physician,  to  go  to  the  Wells, 
and  showed  him  the  message.  The  plaintiff  was  re- 
luctant to  leave  his  regular  patients,  but  consented  to 
go,  and  left  immediately  for  the  Wells,  and  gave  his 
professional  services  to  the  guests  that  were  there. 

Immediately  upon  arriving  at  the  Wells  the  defend- 
ant asked  the  plaintiff  what  was  the  character  of  the 
telegraph  despatch  under  which  he  came  out. 

The  plaintiff  informed  him  that  it  was  the  message 
above  quoted,  and  thereupon  asked  the  defendant  if  it 
was  "  all  right,"  who  said  it  was. 

The  defendant  testified  substantially  to  the  above, 
but  said  he  never  promised  to  pay  plaintiff  for  his  ser- 
vices, and  plaintiff  never  informed  him  that  he  looked 
to  him  for  payment  until  about  three  months  after  he 
left  the  Wells. 

§  338.  Upon  this  state  of  facts  the  Court  held  that 
there  was  no  contract ;  but  that  it  was  simply  a  case 
where  the  defendant,  prompted  by  motives  of  human- 
ity alone,  sought  assistance  for  a  suffering  community, 
incapable  of  helping  themselves ;  that  there  was  no 

[335] 


§  339  THE    TELEGRAPH  [PART  II. 

request  contained  in  the  message,  but  only  the  simple 
announcement  of  a  fact ;  and  the  purport  of  the  mes- 
sage was  merely  to  seek  friendly  aid  from  a  neighbor- 
ing city ;  and  the  Court  seems  to  assume  that  there 
was  an  obligation  resting  upon  the  plaintiff  to  have 
gone  to  their  relief. 

We  think  it  may  be  found  difficult  to  reconcile  this 
decision  with  the  universally  recognized  definition  of  a 
contract;  viz.,  If  a  benefit  accrue  to  him  who  makes 
the  promise,  or  if  any  loss  or  disadvantage  accrue  to 
him  to  whom  it  is  made,  at  the  request  or  on  the  mo- 
tion of  the  promisor,  although  without  benefit  to  the 
promisor,  in  either  case  the  consideration  is  sufficient 
to  sustain  assumpsit. 

§  339.  The  defendant  requested  that  a  physician 
should  be  sent :  the  message  was  shown  to  the  plain- 
tiff, and  thereupon  he  gave  up  for  the  time  his  regular 
practice,  and  went  in  obedience  to  the  request,  and 
gave  his  professional  services  to  the  sick  at  the  defend- 
ant's watering  place.  Before  entering  upon  this  pro- 
fessional labor,  he  was  asked  by  the  defendant  as  to 
the  character  of  the  message  exhibited  to  him ;  and 
when  he  informed  the  defendant,  and  asked  him  if  it 
was  "  all  right,"  he  said  it  was. 

It  might  also  be  urged,  we  think,  that  there  was  a 
benefit  to  be  derived  by  the  promisor  from  the  services 
rendered  by  the  plaintiff.  He  was  pecuniarily  inter- 
ested in  arresting  the  disease,  as  he  was  one  of  the 
stockholders  in  the  Wells,  and  also  its  superintendent. 
In  every  aspect  of  the  case  there  seems  to  have  been 
a  contract  here  ;  an  implied  promise  arising  out  of  the 

[336] 


CHAP.  VI.]          AS    A    MEDIUM    OF    CONTRACT.  §  339  a 

request,  and  which  constituted  a  sufficient  considera- 
tion to  support  the  action. 

A  telegraph  message  as  follows :  "  I  will  be  respon- 
sible for  Porter's  bill  of  goods  ordered  yesterday,"  held, 
to  express  a  sufficient  consideration.1 

§  339  a.  Where  orders  are  sent  by  telegraph,  as  to 
a  banker  to  send  a  deposit,  to  a  merchant  to  make  a 
shipment  of  goods,  and  the  like,  several  questions  of 
interest  may  arise,  but  upon  which  we  have  found  no 
adjudications.  They  are  of  great  practical  importance, 
and  worthy  of  consideration  here,  although  they  may 
not  be  technically  appropriate  to  this  chapter. 

In  the  class  of  cases  suggested,  if  there  had  been  a 
previous  understanding  between  the  parties  that  when 
such  a  transfer  of  funds  or  shipment  of  goods  should 
become  desirable,  that  the  telegraph  would  be  used 
for  communicating  the  order,  what  are  the  duties  of 
the  receiver  of  the  message?  Suppose  the  order  to 
have  been  obeyed,  and  then  it  should  appear  that  the 
order  was  a  forgery  ;  upon  whom  would  the  loss  fall  ? 
Who  takes  the  risk  ?  Must  the  banker  or  merchant 
ascertain  the  genuineness  of  the  message,  before 
obeying  the  order  ?  Or  would  the  loss  fall  upon  the 
party  who  had  given  notice  that  he  would  use  the  tele- 
graph in  making  the  order?  If  the  operator  thus 
transmits  a  forged  despatch,  or  a  despatch  with  a 
forged  signature,  what  liability  does  the  company  in- 
cur1? Must  the  operator  know  that  despatches  are 
genuine  before  he  sends  them  ?  What  effect  will  the 
previous  agreement  to  send  such  orders  by  telegraph 
have  upon  the  telegraph  company,  as  to  diligence  in 

1  Dunning  &  Smith  v.  Roberts,  35  Barb.  463. 

22  [337] 


339  a  AS    A   MEDIUM    OF    CONTRACT.  [PART  II. 

identifying  those  who  hand  in  messages  ?  In  some 
things  the  company  is  the  agent  of  sender  and  receiv- 
er ;  but  does  this  agency  extend  beyond  the  duty  of 
correct  and  prompt  transmission  and  delivery  ? 


[338] 


CHAP.  VII.]  EVIDENCE.  §  342 


CHAPTEE  VII. 

EVIDENCE. 

§  340.  TELEGRAPH  messages  are  instruments  of 
evidence  for  various  purposes,  and  are  governed  by 
the  same  general  rules  which  are  applied  to  other 
writings. 

If  there  be  any  difference,  it  results  from  the  fact 
that  messages  are  first  written  by  the  sender,  and  are 
again  written  by  the  operator  at  the  other  end  of  the 
line;  thus  causing  the  inquiry  as  to  which  is  the 
original. 

§  341.  The  original  message,  whatever  it  may  be, 
must  be  produced,  it  being  the  best .  evidence ;  and  in 
case  of  its  loss,  or  inability  to  produce  it  from  other 
cause,  the  next-best  evidence  the  nature  of  the  case 
will  admit  of  must  be  furnished.  If  there  is  a  copy 
of  the  message  existing,  it  should  be  produced ;  if  not, 
then  the  contents  of  the  message  should  be  shown  by 
parol  testimony.1 

§  342.  But  while  these  are  the  plain  and  well-set- 
tled principles  of  evidence  which  are  to  govern  in 

1  In  Durkee  v.  Vermont  Central  R.R.  Co.  29  Vt.  R.  127,  it  is  said  that 
it  is  customary  in  the  telegraph  offices  in  the  cities  to  preserve  copies  of 
messages  received  over  the  lines,  and  to  record  them  in  books  kept  for  that 
purpose ;  that  in  case  of  the  loss  of  the  original,  such  copy  should  be  pro- 
duced, and  in  case  of  inability  to  produce  such  copy,  that  the  message 
should  then  be  proven  by  witnesses  who  knew  its  contents. 

[339] 


§  344  EVIDENCE.  [PART  IT. 

such  cases,  the  question  arises  as  to  which  is  the  origi- 
nal message. 

There  seems  to  be  confusion  in  the  cases  upon  this 
subject,  which  may  be  relieved,  to  a  great  extent,  by 
close  attention  to  elementary  principles. 

§  343.  In  many  instances  the  message  written  out 
by  the  sender  and  delivered  to  the  telegraph  company 
for  transmission,  is  the  original. 

In  all  matters  connected  with  the  message  as  be- 
tween the  sender  and  the  company,  it  is  the  original. 
It  is  the  conclusive  test  of  accuracy  for  the  company 
in  transmitting  the  message ;  it  is  the  measure  of  com- 
pensation for  sending  it,  and  of  the  operator's  duty 
in  the  premises. 

So,  also,  where  a  party  has  assumed  to  communi- 
cate intelligence,  such  as  reporting  the  markets,  or 
his  own  action  as  agent,  the  duty  will  have  been  per- 
formed by  delivering  the  message  to  the  company; 
and,  in  any  controversy  in  this  behalf,  this  is  clearly 
the  original.  And  as  to  all  contracts  and  agreements 
predicated  upon  this  paper  writing  alone,  it  is  the 
original. 

§  344.  If  the  company  should  be  charged  with 
negligence  or  misfeasance,  in  regard  to  its  duty,  that 
will  become  the  highest  grade  of  evidence  which, 
from  the  nature  of  the  case,  most  clearly  establishes  the 
controverted  fact.  If  an  error  in  transmission  should 
be  alleged,  the  question  would  be  settled  by  compar- 
ing the  operator's  copy  of  the  transmitted  message 
with  the  sender's  original  manuscript.  Both  would 
be  original  testimony. 

If  the  company  failed  or  refused  to  send  a  message, 

[340] 


CHAP.  VII.]  EVIDENCE.  §  347 

it  would  become  important  as  evidence,  according  to 
the  nature  of  the  demand  for  damages. 

§  345.  In  all  cases  where  the  company  can  be  con- 
sidered as  the  agent  of  the  sender  of  the  message, 
in  controversies  arising  out  of  the  communication  by 
telegraph  between  the  sender  and  the  person  to  whom 
the  message  is  addressed,  the  message  received  by 
such  person  must  be  regarded  as  the  original.  If  it 
differs  from  the  message  delivered  for  transmission  by 
which  the  sender  has  suffered  damage,  he  must  look 
to  his  agent,  the  telegraph  company,  for  indemnity. 
In  such  controversies  between  the  sender  and  re- 
ceiver, the  message  received  is  the  best  evidence. 

§  346.  In  case  where  there  has  been  no  previous 
arrangement  or  understanding  between  the  parties 
that  the  telegraph  shall  be  used  as  the  medium  of 
their  negotiations,  and  the  sender  makes  a  proposition 
by  telegraph,  and  the  offer  is  accepted  by  the  same 
medium,  the  message  containing  the  offer,  as  reduced 
to  writing  at  the  office  of  destination  and  delivered  to 
the  party  addressed,  must  be  considered  as  the  origi- 
nal, being  that  which  first  comes  to  his  knowledge 
and  upon  which  he  must  act.  If  he  accepts  the  prop- 
osition, the  acceptance  is  reduced  to  writing,  and  de- 
livered to  the  operator  for  transmission  to  the  party 
who  made  the  offer. 

§  347.  This  act  of  delivery  to  the  operator  com- 
pletes the  contract; *  and  of  course  the  paper  so  deliv- 
ered must  be  an  original.  The  two  terms  of  the 
contract  are  upon  different  pieces  of  paper,  but,  taken 
and  construed  together,  they  constitute  the  sole  evi- 

1  Trevor  &  Colgate  ».  Wood,  36  N.Y.  R.  307. 

[341] 


§  347  EVIDENCE.  [PART  n. 

dence  of  a  completed  contract.  Neither  party  receives 
into  his  immediate  custody  the  paper  first  written  by 
the  other  party,  but  this  is  a  necessity  incident  to  the 
mode  of  communication.  Each  party  receives  a  paper 
not  signed  by  the  other's  hand,  but  both  are  bound  with- 
in the  Statute  of  Frauds.1  Certainly,  so  far  as  the  party 
accepting  the  offer  is  concerned,  the  message  delivered 
by  the  offering  party  to  the  company  for  transmission 
could  not  be  regarded  as  the  original.  If  no  error 
occurred  in  the  transmission,  it  might  be  offered  as  a 
duplicate  or  copy  of  the  original ;  but  we  should 
think  the  message  delivered  to  the  accepting  party 
was  the  best  evidence  and  should  be  required  in  the 
first  instance ;  and,  in  case  of  inability  to  produce  it, 
the  message  delivered  for  transmission  by  the  offering 
party  might  be  introduced,  if  it  did  not  appear  that 
any  error  had  occurred  in  the  transmission;  but  if 
by  comparing  the  message  with  the  accepting  mes- 
sage, to  ascertain  how  far  they  referred  to  the  same 
subject-matter,  or  in  any  other  way,  or  from  any  other 
circumstance,  it  should  appear  that  such  error  existed, 
in  such  case  the  message  would  not  be  decisive  in  de- 
termining what  was  the  contract  between  the  parties. 

The  offering  party  having  selected  the  telegraph  as 
the  medium  of  communication,  the  telegraph  company 
would  be  regarded,  we  think,  as  his  agent,  and  the 
message  delivered  to  the  party  addressed  would  be 
the  original. 

So,  also,  if  a  proposition  is  made  by  telegraph,  and 
the  acceptance  is  by  letter,  or  by  any  other  act,  the 
message  delivered  to  the  party  addressed  would  cer- 

1  Trevor  &  Colgate  v.  Wood,  36  N.Y.  (9  Tiffany),  307. 
[342] 


CHAP.  VII.]  EVIDENCE.  §  351 

tainly  be  the  original,  and  the  best  evidence  of  the 
contract. 

§  348.  We  may,  say  in  general,  that  which  evi- 
dences the  contract,  and  by  which  the  party  has 
agreed  to  be  bound,  is  an  original.  Duplicates,  tripli- 
cates, or  any  number  of  papers,  may  be  signed  as 
evidencing  the  same  contract,  and  all  will  be  origi- 
nals. 

§  349.  The  first  draft  of  a  despatch  containing  an 
offer  may  be  used  as  an  original  in  the  nature  of  a  du- 
plicate, if  it  should  further  appear  that  a  telegraph 
copy  of  the  writing  had  come  to  the  knowledge  and 
acceptance  of  the  party  addressed.  And  so  the  tele- 
graph copy  of  the  message  of  acceptance  may  be  used 
for  any  appropriate  purpose,  although  the  delivery  of 
the  first  written  paper  by  the  accepting  party  to  the 
company  fixed  the  rights  and  responsibilities  of  the 
other  contracting  party. 

§  350.  If  a  verbal  message  should  be  received  by 
an  operator,  and  it  should  be  delivered  verbally  to  the 
person  addressed,  then  the  material  facts  would  have 
to  be  established  by  parol  evidence.  The  same  gen- 
eral rules  which  obtain  as  to  written  messages  would 
obtain  here,  the  character  of  the  proof  only  being  dif- 
ferent. The  witness  who  had  the  best  opportunity  to 
know,  and  who  did  best  remember,  other  things  being 
equal,  could  most  satisfactorily  establish  the  facts. 
Such  a  case  may  not  occur,  but  the  supposition  illus- 
trates a  mode  of  proof,  which  suggests  the  true  rule  as 
to  what  writing  will  be  treated  as  original  or  highest 
evidence  in  a  similar  transaction. 

§  351.  If  the  parties  have  agreed  beforehand  that 

[343] 


§  352  EVIDENCE.  [PART  n. 

the  telegraph  shall  be  the  medium  of  their  communi- 
cation, the  message  containing  the  offer  as  it  is  deliv- 
ered to  the  other  party  is  the  original,  and  the  message 
in  response,  as  written  out  by  that  party  and  delivered 
to  the  company  for  transmission,  is  also  the  original ; 
and  these  two  writings  constitute  the  best  evidence  as  to 
any  matter  arising  between  these  contracting  parties  in 
relation  to  such  negotiations. 

If  either  party  has  suffered  damage  by  reason  of  any 
error  in  the  transmission  of  his  particular  message,  or 
delay,  or  other  default  in  reference  thereto,  on  the  part 
of  the  company,  he  must  look  to  the  company  for  his 
indemnity. 

For  the  agreement  to  negotiate  through  this  medi- 
um is  based  upon  this  idea  of  the  responsibility  of  the 
company  to  either  of  them  as  the  case  may  be,  who 
may  suffer  any  damage  by  the  default  of  the  com- 
pany. 

As  between  themselves,  the  contract  is  complete, 
and  the  rights  fixed,  by  the  two  messages,  as  we  have 
before  stated. 

For  error  or  other  default  as  to  either  message,  the 
company  is  responsible  to  the  party  who  in  fact  suffers 
the  injury  because  of  the  default. 

§  352.  The  necessity  for  quick  and  effectual  nego- 
tiations, and  the  general  requirements  of  commercial 
transactions,  make  it  manifest  that  the  highest  degree 
of  responsibility  should  be  imposed  by  law  upon  tele- 
graph companies  ;  for  upon  no  other  hypothesis  can 
that  absolute  good  faith,  care,  and  diligence  which  are 
essential  to  the  demands  of  such  negotiations,  be 
guaranteed  to  the  contracting  parties.  And  here  we 

[344] 


CHAP.  VII.]  EVIDENCE.  §  353 

find  an  additional  consideration  for  holding  them  to 
the  severe  responsibility  of  common  carriers. 

§  353.  There  are  but  few  reported  cases  in  which 
the  principles  of  evidence  governing  telegraph  mes- 
sages have  been  discussed. 

In  the  case  of  Matteson  v.  Noyes, *  it  was  held  that 


1  25  HI.  R.  591.  Walker,  J.,  -who  delivered  the  opinion  of  the  Court, 
said,  "  On  the  trial  below,  appellee  offered,  and  the  Court  admitted,  in 
evidence,  what  purported  to  be  a  telegram  from  appellant  to  Loren 
Darling.  There  was  no  evidence  that  it  was  the  original,  or  that  the 
original  had  been  lost  or  destroyed,  or  could  not  be  procured,  or  that  the 
paper  offered  was  a  copy. 

"  It  was  simply  offered  and  admitted  as  the  despatch  which  was  re- 
ceived by  the  witness  from  the  telegraph  office,  and  as  primary  evidence. 

"  It  is  an  elementary  principle  that  a  resort  must  always  be  had  to  the 
best  evidence  within  the  power  of  the  party  by  which  the  fact  is  capable 
of  proof.  And  it  is  an  inflexible  rule  that  if  it  is  in  writing,  the  original 
must  be  produced,  unless  it  be  shown  that  it  is  destroyed,  lost,  or  not  with- 
in the  power  of  the  party  to  produce  it,  before  secondary  evidence  can  be 
received  of  the  contents. 

"  And  before  a  copy  of  a  written  instrument  can  be  admitted,  a  suf- 
ficient foundation  must  be  laid  by  preliminary  proof  of  destruction  or 
absence. 

"  In  this  case  no  such  proof  was  made  to  justify  the  reception  of  this 
copy  in  evidence. 

"  We  know  that  by  the  admirable  system  regulating  the  government 
of  the  telegraph  companies  the  original  despatch  is  preserved,  and  may  be 
at  all  times  procured  for  the  proper  purposes. 

"  The  paper  filed  at  the  office  from  which  the  message  is  sent  is,  of 
course,  the  original ;  and  that  which  is  received  by  the  person  to  whom  it 
was  sent  purports  to  be  a  copy.  If  the  despatch  is  sought  to  be  used  in 
evidence,  the  original  must  be  produced,  and  its  execution  proved  pre- 
cisely as  any  other  instrument,  or  its  absence  accounted  for  in  the  same 
mode,  before  the  copy  can  be  received. 

"  In  this  case  there  was  no  effort  to  produce  the  original,  or  to  account 
for  its  absence ;  nor  was  there  any  proof  even  that  the  message  was  a  copy 
of  the  original. 

"  Whilst  we  know  that  the  operators  employed  by  the  company  are 
unusually  accurate  and  reliable ;  in  the  mode  of  doing  business,  still  they 
do  not  act  under  the  sanction  of  an  oath ;  and  even  if  they  did,  a  copy  com- 

[345] 


§  354  EVIDENCE.  [PART  u. 

the  message  delivered  to  the  operator  to  be  sent  was 
the  original,  and  the  message  received  by  the  party  to 
whom  it  was  addressed  was  only  a  copy.  It  does 
not  clearly  appear  from  the  report  of  the  case  what 
were  the  exact  nature  and  object  of  the  message  in 
question.  It  was  an  action  by  Matteson  against 
Noyes,  to  recover  the  value  of  certain  railroad  cross- 
ties,  delivered  under  a  contract.  It  appears  that  a 
telegraph  despatch  was  admitted  in  evidence,  or,  ac- 
cording to  the  holding  of  the  Court,  a  copy  of  the 
despatch ;  i.e.,  the  manuscript  received  by  the  party 
to  whom  it  was  addressed. 

§  354.  Whether  this  was  offered  as  evidence  of  the 
contract  between  the  parties  is  not  disclosed  in  the 
report  of  the  case,  but  we  infer  from  the  language  of 
the  opinion  that  such  was  the  fact.  Upon  this  hy- 
pothesis we  could  not  concur  in  the  opinion,  unless 
there  were  other  facts  in  evidence  which  the  case  as 


ing  from  the  office  where  delivered  must  be  proven  to  be  a  true  and  a 
compared  copy,  before  it  can  be  admitted  in  a  proper  case. 

"  For  these  reasons  we  are  clearly  of  opinion  that  the  Court  below 
erred  in  admitting  this  despatch,  without  the  requisite  preliminary  proof. 

"  When  all  the  evidence  in  this  case  is  considered,  it  is  manifest  that 
the  contract  was  made  with  the  railroad  company,  and  not  with  the  appel- 
lant on  his  individual  account.  One  witness  testified  that  appellant 
stated  in  the  presence  of  appellee,  at  the  time  the  agreement  was  entered 
into,  that  it  was  for  the  road  it  was  made,  and  that  the  company  was  to 
pay  for  the  ties ;  and  that  appellee  so  understood  the  contract,  is  obvious, 
from  the  fact  that  he  made  out  and  presented  his  account  for  the  ties 
against  the  company,  and  receipted  to  the  company  for  the  money  re- 
ceived of  them,  on  the  contract.  The  ties  were  received,  inspected,  and 
used  by  the  employe's  of  the  road,  and  we  are  at  a  loss  to  perceive  any 
thing  in  the  record  which  tends  to  rebut  the  presumption.  It  seems  to  be 
clear  beyond  doubt  that  the  contract  was  made  with  the  company,  and 
that  the  appellee  so  understood  it ;  and  if  so,  he  had  no  pretence  of  a  right 
to  look  to  appellant  for  its  performance." 
[346J 


CHAP.  VII.]  EVIDENCE.  §  356 

reported  does  not  disclose,  showing  that  by  the  under- 
standing of  the  contracting  parties  the  telegraph  com- 
pany was  to  be  considered  the  agent  of  the  party 
receiving  the  message. 

§  355.  In  Canada  the  same  view  is  taken,  that  the 
message  delivered  for  transmission  is  the  original,  in 
a  case  where  the  telegraph  was  used  as  the  medium 
of  contract.  It  was  so  held  in  the  case  of  Kinghorn 
v.  The  Montreal  Telegraph  Co.1 

The  case  disclosed  that  William  Crawford,  at  Os- 
wego,  N.Y.,  telegraphed  to  the  plaintiff  at  Kingston, 
Canada,  "  Will  give  you  eighty  cents  for  rye ; "  to 
which  the  plaintiff  replied  through  the  same  medium, 
"  Do  accept  your  offer ;  ship  to-morrow  fifteen  or 
twenty  hundred."  The  evidence  introduced  as  to 
the  messages  was  that  the  plaintiff  received  a  telegraph 
despatch  from  Oswego,  with  the  name  "William 
Crawford  "  attached  to  it,  which  was  the  same  as  we 
have  given  above ;  and  on  the  next  day  he  took  to  the 
defendant's  office  a  message  in  reply,  which  was  the 
same  as  the  second  message  we  have  quoted  above. 
It  does  not  appear  how  these  messages  were  proven. 
It  thus  appears  that  no  proof  was  offered  of  the  mes- 
sage delivered  for  transmission  by  Crawford,  but  only 
of  the  message  as  read  off  from  the  battery  at  the  office 
of  destination,  and  reduced  to  ordinary  language,  and 
delivered  to  the  plaintiff. 

§  356.  Robinson,  C.J.,  in  delivering  the  opinion  of 
the  Court  upon  this  point,  says,  "  We  must  look, 
I  think,  in  the  case  of  each  communication,  at  the 
papers  delivered  by  the  party  who  sent  the  message, 

1  18  Upper  Canada  R.  (Q.B.)  60. 

[347] 


§  358  EVIDENCE.  [PART  n. 

not  at  the  transcript  of  the  message  taken  through 
the  wire  at  the  other  end  of  the  line,  with  all  the 
chances  of  mistake  in  apprehending  and  writing  the 
signals,  and  in  transcribing  for  delivery ; "  and  states 
that  the  plaintiff  neither  produced  on  the  trial  the 
message  signed  by  Crawford,  nor  accounted  for  its 
non-production.  If  this  ruling  is  correct,  we  are  at 
a  loss  to  perceive  how  contracts  could  ever  be  made 
through  the  medium  of  the  telegraph. 

§  357.  In  the  case  of  Trevor  &  Colgate  v.  Wood,1 
in  the  Supreme  Court  of  New  York,  the  Court  speak 
of  the  message  delivered  to  the  person  to  whom  it 
was  addressed  as  the  copy.  This  was  the  case  of  a 
contract  made  through  the  medium  of  the  telegraph. 

But  this  case  was  reversed  in  the  Court  of  Errors 
and  Appeals,2  and  it  was  held  that  the  message  de- 
livered to  the  person  addressed  was  the  original  mes- 
sage, and  that  the  message  of  acceptance  as  written 
out  and  delivered  by  the  accepting  party,  for  trans- 
mission, was  also  an  original. 

§  358.  The  case  of  Dunning  &  Smith  v.  Koberts3 
also  sustains  this  latter  view.  That  was  also  the  case 
of  a  contract  by  telegraph.  The  message  was  ver- 
bally delivered  for  transmission,  and  the  only  writ- 
ing was  at  the  office  of  destination  where  the  message 
was  written  and  delivered. 

The  Court  seem  to  regard  this  as  the  original,  and 
best  evidence  of  the  contract  between  the  parties. 

There  was  no  proof  that  the  operator  who  received 
the  message  for  transmission  wrote  it  down,  and  the 
inference  is  that  he  did  not.  It  was  objected  in  ar- 

1  41  Barb.  255.       *  36  N.Y.  (9  Tiffany),  307.       3  35  Barb.  463. 
[348] 


CHAP.  VII.]  EVIDENCE.  §  360 

gument  that  the  message  was  not  subscribed  by  the 
defendant  nor  by  his  authority. 

§  359.  The  Court  say,  "  Under  the  circumstances 
of  the  case  the  act  of  Edwin  G.  Roberts  [the  opera- 
tor], in  forwarding  the  telegram,  was  the  act  of  the 
defendant ;  and  the  manipulations  of  the  operator  were 
equivalent  to  an  actual  personal  signing  of  the  mes- 
sage by  the  defendant  with  pen  and  ink;"  but  the 
message  not  having  been  written  out  by  the  operator 
to  whom  it  was  orally  delivered,  the  only  evidence  of 
the  signature  would  be  at  the  other  end  of  the  line, 
where  the  message  was  first  reduced  to  writing  in 
ordinary  language." 

This  holding  is  important  under  the  Statute  of 
Frauds.1 

§  360.  The  true  doctrine  is  presented  in  the  case 
of  Durkee  v.  Vermont  Central  R.R.  Co.,2  where 
Redfield,  J.,  in  delivering  the  opinion  of  the  Court, 
says,  "  In  regard  to  the  particular  end  of  the  line 
where  inquiry  is  first  to  be  made,  it  depends  upon 
which  party  is  responsible  for  the  transmission  across 
the  line,  or,  in  other  words,  whose  agent  the  telegraph 
company  is.  The  first  communication  in  the  transac- 
tion, if  it  is  all  negotiated  across  the  wires,  will  only 
be  effective  in  the  form  in  which  it  reaches  its  desti- 
nation. 

"  In  such  case  inquiry  should  be  made  for  the  de- 
spatch delivered.  In  default  of  that,  its  contents  may 
be  shown  by  the  next-best  proof." 3 

1  See  also,  on  this  point,  Trevor  &  Colgate  v.  Wood,  36  N.Y.  307. 

2  29  Vt.  R.  127. 

3  In  the  case  of  Williams  v.  Bicknell,  37  Miss.  R.  682,  the  telegraph 

[349] 


§  362  EVIDENCE.  [PART  n. 

§  361.  An  interesting  question  presents  itself,  as 
to  whether,  as  a  matter  of  evidence,  the  message  at 
one  end  of  the  line  can  be  regarded  as  the  copy  of 
the  message  at  the  other  end  of  the  line.  When  the 
message  delivered  for  transmission  is  to  be  regarded 
as  the  original,  is  the  message  written  out  at  the 
office  of  destination  to  be  regarded  as  a  copy,  and  vice 
versa ? 

In  some  of  the  cases  one  message  is  spoken  of 
as  a  copy  of  the  other.  If  there  be  any  case  in 
which  one  message  may  be  considered  as  the  copy 
of  the  other,  it  must  be  in  a  case  where  the  tele- 
graph has  been  used  as  the  medium  of  contract,  and 
in  which  no  question  arises  as  to  error  or  mistake  in 
the  message;  or  in  an  action  against  the  telegraph 
company  for  delay  merely. 

§  362.  In  such  case,  if  the  message  delivered  for 
transmission  is  treated  as  the  original  message,  and 
the  inability  to  produce  it  is  accounted  for,  so  as  to 
justify  the  admission  of  secondary  evidence,  then  the 
message  as  written  after  transmission  might  be  intro- 
duced as  the  next-best  evidence,  and  as  a  copy,  upon 
the  presumption  that  it  was  accurately  transmitted ; 
or  if  the  message  written  after  transmission  be  con- 
sidered as  the  original,  and  its  non-production  account- 
message  was  proven  by  the  testimony  of  witnesses  who  professed  to  state 
its  contents,  and  no  excuse  was  furnished  for  the  non-production  of  the 
original. 

This  was  held  to  be  error ;  but,  as  the  party  entitled  to  the  benefit  of 
this  had  admitted  the  contents  of  the  message,  he  could  not  avail  himself 
of  it. 

There  was  no  expression  of  opinion  by  the  Court  as  to  what  was  to  be 
regarded  as  the  original  despatch,  and,  indeed,  the  case  did  not  call  for 
any  expression  of  opinion  on  that  point. 
[350] 


CHAP.  VII.]  EVIDENCE.  §  363 

ed  for  so  as  to  authorize  secondary  evidence,  the 
message  written  before  transmission  may  be  admitted 
as  a  copy  of  the  original,  upon  the  same  presump- 
tion that  there  was  an  accurate  transmission  and  an 
accurate  reproduction,  so  to  speak,  of  the  message, 
and,  hence,  the  presumption  that  this  first  message 
was  a  copy  of  that  which  was  to  be  considered  as 
the  original  message ;  and  such  message  would  be 
admitted  upon  the  presumption  which  obtains  in  all 
cases  where  a  writing  is  permitted  to  be  read  as  a  copy; 
to  wit,  that  it  does  not  vary  from  the  original. 

§  363.  So,  in  case  of  an  action  against  a  telegraph 
company  for  delay  in  the  transmission  of  a  message,  it 
may  be  proper  to  regard  the  one  message  as  the  copy 
of  the  other.  For,  as  in  such  cases,  the  message 
delivered  for  transmission  must  be  regarded  as  the 
original  message,  and  the  best  evidence  in  the  case 
would  be  its  production  with  proof  of  the  hour  when 
it  was  delivered  to  the  operator  for  transmission 
(and  which  is  usually  indorsed  on  the  message  itself), 
and  then  the  production  of  the  message  received 
over  the  wires,  with  the  proof  of  the  date  of  its  de- 
livery to  the  person  to  whom  it  was  addressed,  or  of 
the  failure  to  deliver  it  altogether ;  yet  in  case  of 
inability  «to  produce  the  message  delivered  for  trans- 
mission, the  message  received  over  the  wires  might 
be  looked  to  as  a  copy  of  this  message,  and  proof 
be  admitted  aliunde  of  the  hour  of  its  delivery  for 
transmission  and  the  hour  of  its  delivery  at  the  place 
of  destination ;  or,  where  the  message  received  over 
the  wires  contains  a  statement  on  its  face  of  these 
periods  of  time  (which  is  usually  the  case),  it  might 

[351] 


§  364  EVIDENCE.  [PART  n. 

be  considered  not  only  as  a  copy  of  the  original,  but 
as  containing  in  addition  thereto  the  admission  of  the 
defendant  as  to  the  respective  dates  of  reception  for 
transmission,  and  of  reception  after  transmission. 

§  364.  In  other  words:  In  an  action  against  a 
telegraph  company  for  delay  in  transmitting  a  mes- 
sage, the  first  question  is  as  to  date  of  reception. 
If  that  shall  have  been  indorsed  on  the  sender's 
manuscript,  by  an  agent,  that  will  bind  the  company, 
and  the  proof  is  very  simple.  The  two  links  are 
thus  blended  into  one.  The  manuscript  of  this  mes- 
sage by  the  operator  at  the  other  end  of  the  route, 
in  case  of  actual  transmission,  shows  that  much  prog- 
ress in  the  discharge  of  the  undertaking,  and  the 
operator's  indorsement  of  the  date  of  reception  will 
be  part  of  the  res  gestce;  and,  uncontradicted,  will 
establish  the  fact.  Ordinarily  these  two  manuscripts 
and  indorsements  will  determine  the  question  as  to 
diligence.  As  the  action  is  for  delay,  their  sameness 
as  to  the  wording  of  the  manuscripts  is  conceded, 
or  rather  is  assumed  as  a  fact;  but  each  one  has  a 
substantive  existence  upon  which  other  substantive 
proof  may  be  predicated.  If  the  agents  made  false 
entries  as  to  dates  of  reception  respectively,  or  if  not 
entered  at  all,  other  witnesses  might  be  called  to 
prove  the  dates.  They  would  need  both  manuscripts 
as  connecting  links  to  show  that  their  testimony  bore 
upon  the  same  point,  that  the  message  received  was 
identical  with  the  one  sent,  and  that  unnecessary 
delay  had  taken  place.  In  this  sense  the  former  is  a 
copy  of  the  latter.  But  it  is  manifest  in  this  issue 
that  each  answers  a  different  purpose,  and  is  a  dis- 

[852] 


CHAP.  VII.]  EVIDENCE.  §  367 

tinct,    original   piece    of  the    evidence    necessary    to 
establishing  the  question  of  delay  or  diligence. 

§  365.  But  these  are  all  cases  where  no  question 
arises  as  to  any  error  or  inaccuracy  in  the  message 
transmitted.  And,  we  think,  in  no  case  can  the  one 
message  be  considered  as  the  copy  of  the  other,  when 
there  is  any  question  as  to  accuracy  in  the  transmis- 
sion. 

§  366.  Let  us  take,  for  example,  a  case  where  there 
is  a  question  as  to  the  correctness  and  accuracy  in  the 
transmission  of  the  message,  and  where  the  message 
received  is  regarded  as  the  original. 

Suppose  there  has  been  some  mistake  in  the  trans- 
mission,' so  that  the  two  messages  do  not  correspond. 

Here  it  is  clear  that  the  message  delivered  for  trans- 
mission cannot  be  considered  as  a  copy  of  the  message 
received  by  the  person  addressed;  nor  could  it,  in  any 
sense,  be  looked  to  as  secondary  evidence  of  what  is 
regarded  as  the  original  message. 

It  is  not  a  copy.  It  is  in  fact  a  different  message. 
The  right  of  action  is  really  based  upon  the  fact  that 
the  message  delivered  to  the  person  to  whom  it  was 
addressed  had  been  wrongfully  changed,  and  that  it 
was  a  different  message  from  the  one  delivered  for 
transmission. 

§  367.  Let  us  suppose  in  the  case  we  have  so  fre- 
quently referred  to  of  New  York  &  Washington  Print- 
ing Telegraph  Co.  v.  Dryburg,  that  instead  of  instituting 
his  action  against  this  telegraph  company,  Dryburg 
had  instituted  it  against  Le  Roy,  the  sender  of  the  mes- 
sage. The  message  Le  Roy  delivered  for  transmission 

23  [353] 


§  368  EVIDENCE.  [PART  n. 

was,  "  Send  two  hand  bouquets."  The  message  Dry- 
burg  received  was,  "  Send  two  hundred  bouquets." 
He  acted  upon  it  and  procured  the  two  hundred 
bouquets.  Let  us  suppose  that  the  manuscript  received 
by  Dryburg  had  been  lost,  or  for  any  other  reason 
could  not  be  produced  in  evidence ;  he  then  proposes 
to  offer  secondary  evidence  of  its  contents.  If  the 
manuscript  delivered  for  transmission  be  produced,  it 
reads,  "  Send  two  hand  bouquets."  Dryburg  would 
be  entitled  to  proof  showing  what  his  manuscript  con- 
tained. This  will  serve  as  an  illustration  of  all  those 
cases  in  which  there  is  any  question  of  error  or  .mis- 
take in  the  transmission  of  the  message. 

§  368.  As  a  general  thing,  we  should  say,  the  one 
message  is  not  to  be  considered  as  a  copy  of  the  other ; 
but  the  true  character  of  the  message  is  more  nearly 
assimilated  to  a  letter  of  instruction  from  the  princi- 
pal to  his  agent. 

In  an  action  by  the  sender  of  the  message  against 
the  telegraph  company  for  failure  to  transmit  the 
message  as  delivered,  and  for  delivering  to  the  person 
to  whom  it  was  addressed  a  different  message,  upon 
which  he  acted,  and  by  reason  thereof  the  plaintiff 
suffered  loss,  the  question  being  whether  the  agent, 
the  company,  was  guilty  of  negligence  in  transacting 
the  business  of  its  principal,  the  message  delivered 
to  the  company  would  be  the  evidence  defining  the 
agency  it  had  undertaken,  and  determining  whether 
the  company  had  complied  with  its  undertaking :  this 
would  be  ascertained  by  comparing  that  message  with 
the  message  delivered  by  the  company.  In  other 

[354] 


CHAP.  VII.]  EVIDENCE.  §  369 

words,  the  message  delivered  for  transmission  would 
be  the  letter  of  attorney  under  which  the  agent,  the 
telegraph  company,  acted.1 

§  369.  In  an  action  by  the  receiver  of  the  message 
against  the  sender,  upon  a  contract  made  through  the 
medium  of  the  telegraph,  it  does  not  require  direct 
proof  that  the  message  was  delivered  to  the  telegraph 
company  to  be  transmitted,  by  the  defendant  himself. 
Proof  that  it  was  delivered  at  the  telegraph  office  as 
purporting  to  come  from  the  person  sought  to  be  held 
liable  as  the  sender  of  the  message,  may  be  given  to 
the  jury,  without  express  proof  that  it  was  sent  by  the 
defendant  or  with  his  consent.2 

1  We  do  not  consider  that  the  provisions  of  the  Internal  Revenue  Laws 
of  the  United  States,  in  reference  to  messages,  did  or  could  militate  against 
the  view  that  the  message  received  may  be  the  original  message.     The  Act 
of  Congress  of  July  1,  1862,  sec.  279,  provided  (now  repealed)  that  "no 
telegraph  company,  nor  its  agent  or  employe,  shall  receive  from  any  per- 
son, or  transmit  to  any  person,  any  despatch  or  message,  without  an  ad- 
hesive stamp  denoting  the  duty  imposed  by  the  act,  being  affixed  to  a  copy 
thereof,  or  having  the  same  stamped  thereon ;  and,  in  default  thereof,  shall 
incur  the  penalty  of  ten  dollars.     Provided,  that  only  one  stamp  shall  be 
required,  whether  sent  through  one  or  more  companies."     Appendix. 

The  want  of  the  stamp  would  not  affect  the  validity  of  the  contract,  but 
only  subject  the  company  to  a  penalty  for  non-compliance.  It  applied  in 
terms  only  to  the  message  first  handed  in  for  transmission. 

2  Taylor,  defendant,  in  error,  v.  Steamboat  Robert  Campbell,  plaintiff 
in  error,  20  Mo.  (5  Bennett)  R.  254. 

The  operator  at  Lexington  testified  that  the  following  message  — 

"Booneville,  Dec.  11,  1852. 
"  To  ROBERT  CAMPBELL. 

"  Make  room  for  400  hogs  at  fair  rates.  WM.  TAYLOR." 

was  received  at  his  office  on  the  day  of  its  date,  and  on  the  same  day  was 
delivered  to  the  officers  of  the  steamboat  "  Robert  Campbell;"  and  that 
on  the  next  day  the  following  despatch  was  deposited  in  his  office,  and  for- 
warded to  Booneville :  — 

[355] 


§  371  EVIDENCE.  [PART  n. 

§  370.  In  an  action  by  the  sender  of  the  message 
against  the  receiver,  proof  of  the  delivery  of  the  mes- 
sage to  him  may  be  shown  by  the  agents  or  servants 
of  the  telegraph  company.1 

§  371.  Where  it  is  the  custom  of  the  telegraph 
company  to  take  the  receipt  of  the  person  to  whom 
the  message  is  addressed,  by  procuring  him  to  write 
his  name  in  a  book  kept  by  the  company  for  that 
purpose,  and  proof  by  the  agent  or  servant  of  the 
company  that  such  was  the  uniform  rule  or  custom  of 
the  company,  and  a  production  of  the  book  with  the 
name  of  the  person  written  therein  in  the  column 
opposite  to  the  columns  containing  the  name  of  the 
sender,  the  place  and  date  of  transmission,  would 
probably  be  held  sufficient  evidence  of  the  fact  of  the 

"  Lexington,  December  1 2- 
"  Will  take  your  hogs.     Be  down  to-morrow  morning. 

"  CAPT.  EDDS." 

Upon  this  testimony  the  plaintiff  was  permitted  to  read  the  messages 
in  evidence  to  the  jury,  notwithstanding  an  objection  by  the  defendant 

Scott,  J.,  in  delivering  the  opinion  of  the  Court,  says, — 

"  The  evidence  is  complete  to  show  that  a  communication  was  made  by 
the  plaintiff  to  the  defendant ;  but  the  difficulty  arises  in  showing  that 
the  answer  to  the  communication  was  from  the  agent  of  the  defendant. 
The  telegraph  agent  testifies  that  the  despatch  received  from  the  plaintiff 
was  delivered  to  the  officers  of  the  steamboat '  Robert  Campbell,'  and  a 
despatch  in  answer  to  that  of  the  plaintiff  was  deposited  in  his  office  to  be 
forwarded  to  the  plaintiff,  which  was  done  on  the  next  day. 

a  If  under  such  circumstances  any  person  had  received  a  despatch  in 
answer  to  one  forwarded  by  him,  he  would  not  have  failed  to  act  upon  it. 
His  conduct  would  have  been  based  upon  the  faith  usually  given  to  the 
correctness  and  fidelity  with  which  such  business  is  transacted  by  the 
agents  of  the  telegraph.  For  these  reasons  we  are  inclined  to  the  opinion 
that  the  evidence  offered  by  the  plaintiff  was  sufficient  to  permit  the 
despatch  to  be  read  in  evidence  to  the  jury,  who  would  then,  from  all  the 
circumstances,  determine  whether  it  was  the  act  of  the  master  of  the  boat." 

1  Draper  v.  Worcester  &  Norwich  R.R.  Co.  11  Met.  505. 
[356] 


CHAP.  VII.]  EVIDENCE.  §  372 

delivery  of  a  message  on  that  day,  although,  the  wit- 
ness might  have  no  recollection  of  having  seen  the 
party  write  his  name  therein,  and  might  be  unac- 
quainted with  his  handwriting. 

And  if  it  were  also  the  custom  of  the  company  to 
make  a  copy  of  the  message  received  over  the  line, 
and  enter  it  in  a  book  kept  for  that  purpose,  a  pro- 
duction of  the  book,  with  a  copy  of  the  message  in  it, 
taken  in  connection  with  the  entry  of  the  party's  name 
in  the  company's  receipt  book  of  the  delivery  of  mes- 
sages, in  the  usual  column  opposite  to  the  memoran- 
dum of  the  message,  would  be  sufficient  evidence  of 
the  delivery  of  the  message.1 

§  372.  In  an  action  by  the  sender  of  the  message 
against  the  company  for  failure  to  deliver  the  message, 
or  for  loss  or  incorrect  transmission  of  the  message,  its 
agents  and  servants  would  be  competent  witnesses  for 
the  plaintiff  and  against  the  company ; 2  but  not  for 
the  company  wherever  the  conduct  of  such  agent  or 
servant  occasioned  the  loss  or  damage  complained  of, 
as  he  would  be  liable  to  the  company  in  a  subsequent 
action  for  the  damages  which  might,  in  this  action,  be 
recovered  against  the  company. 

The  company  would  have  to  execute  a  release  to 
him  to  make  him  competent.3 


1  1  Greenleaf  on  Evidence,  §§  115-117;  Nicholls  v.  Webb,  3  Wheaton, 
326;  Welsh  v.  Barrett,  15  Mass.  380;  Pritt  v.  Fairclough,  3  Campbell, 
305. 

a  Merrill  v.  Ithaca  &  Oswego  R.R.  Co.  16  Wend.  586. 

8  See  Angell  on  Carriers,  §  469,  and  authorities  cited.  But  see  Dra- 
per v.  Worcester  &  N.  Railway,  11  Met.  505;  4  Foster  71,  89.  In  the 
case  of  Birney  v.  N.T.  &  Wash.  Prin.  Teleg.  Co.  18  Md.  341,  the  tele- 
graph company  introduced  the  operator  whose  misconduct  occasioned  the 

[357] 


§  375  EVIDENCE.  [PART  n. 

§  373.  While  it  is  true  that  in  an  action  against  the 
company  for  negligence  either  in  the  tranmission  or 
delivery  of  the  message,  the  burden  of  proof  is  on  the 
plaintiff  to  support  the  allegation  in  the  declaration, 
yet,  having  proven  a  delivery  to  the  company  of  the 
message  for  transmission,  the  proof  of  non-transmis- 
sion or  non-delivery  by  the  company,  or  delay  in  this 
matter,  \vould  be  satisfied  by  slight  evidence  on  the 
part  of  the  plaintiff;  for  the  plaintiff  cannot  be  ex- 
pected to  establish  this  negative  by  positive  proof, 
and  the  facts  lie  more  particularly  within  the  knowl- 
edge of  the  company.1 

§  374.  In  an  action  against  a  railroad  company  for 
non-delivery  of  goods  to  a  connecting  line,  it  has  been 
held  insufficient  evidence  to  charge  the  company  to 
show  the  delivery  of  the  goods  to  it,  and  the  failure  of 
their  arrival  at  the  place  of  destination.2  The  same 
principle  would  be  applied  to  the  case  of  a  telegraph 
company  in  an  action  against  it  for  failure  to  deliver  the 
message  to  a  connecting  line  over  which  it  must  pass 
to  reach  its  destination.  Something  more  would  be 
required  than  proof  of  delivery  of  the  message  to  the 
original  company,  and  its  non-reception  at  the  place 
to  which  it  was  addressed. 

§  375.  There  is  a  very  general  statutory  provision, 
prohibiting  the  agents  and  servants  of  telegraph  com- 
panies from  making  disclosures  of  messages  transmitted 
over  the  wires  of  the  company ;  and  in  most  of  the 


damage  complained  of;  but  no  exception  seems  to  have  been  taken.     See 
also  Kinghorn  ».  Montreal     cleg.  Co.  18  Upper  Canada  R.  60. 

1  Angell  on  Carriers,  §§  470,  471. 

*  Midland  Railway  ».  Bromley,  33  Eng.  Law  &  Eq.  R.  235. 
[358] 


CHAP.  VII.]  EVIDENCE.  §  377 

statutes  a  penalty  is  imposed  for  a  violation  of  this 
requirement.1 

It  has  been  held,  in  the  cases  where  this  statutory 
provision  has  been  construed,  that  it  does  not  refer 
to  disclosures  made  by  the  agent  or  servant  of  the 
company  in  courts  of  justice,  when  examined  as  wit- 
nesses. 

The  question  was  decided  in  Pennsylvania,  in  the 
case  of  Henisler  v.  Freedman.2 

§  376.  The  statute  of  Pennsylvania  is  similar  in  its 
terms  to  all  the  other  statutes  on  this  subject  in  the 
different  States.  The  act  declared  that "  it  should  not 
be  lawful  for  any  person  concerned  in  any  line  of  tele- 
graph to  use  or  make  known,  or  caused  to  be  used  or 
made  known,  the  contents  of  any  despatch  of  what- 
ever nature,  which  might  be  sent  or  received  over  any 
line  of  telegraph,  without  the  consent  or  direction  of 
either  the  party  sending  or  receiving  the  same ;  and 
that  all  despatches  which  might  be  filed  at  any  office  in 
the  Commonwealth  for  transmission  to  any  point, 
should  be  transmitted  without  being  made  public,  or 
their  purport  in  any  manner  divulged  at  any  interme- 
diate point  whatever. 

§  377.  "  And  in  all  respects  the  same  inviolable  se- 
crecy shall  be  maintained  by  the  officers  and  agents 
employed  upon  the  several  telegraph  lines  in  relation 
to  all  despatches  which  might  be  sent  or  received  as 
may  be  enjoined  by  the  United  States  in  relation  to 
the  ordinary  mail  service  of  the  United  States.  .  .  . 

1  See  post,  c.  9,  §§  435-446. 

2  2  Parsons  (Perm.),  Select  Cases  in  Equity  and  Law  (Cases  in  Law), 
274. 

[359] 


§  378  EVIDENCE.  [PART  n. 

If  any  person  in  any  capacity  connected  with  any  such 
telegraph  line  should  use  or  cause  to  be  used,  or 
make  known  or  cause  to  be  made  known,  the  contents 
of  any  despatch  sent  from,  or  received  at,  any  office  in 
the  Commonwealth,  or  in  any  other  way  unlawfully 
expose  another's  business  or  acts,  or  in  any  way  impair 
the  value  of  any  correspondence  so  sent  or  received, 
such  person  being  duly  convicted  thereof  shall  be 
punished  with  fine  and  imprisonment." 

§  378.  It  was  held,  that  the  prohibition  under  the 
act  related  only  to  voluntary  disclosures,  and  had  no 
application  to  disclosures  made  in  the  courts  of  justice 
by  the  agent  or  servant  of  the  company,  when  ex- 
amined as  a  witness,  but  only  to  cases  where  the  party, 
in  the  language  of  the  act,  unlawfully  exposes  the 
communication,  which  would  be  the  case  when  he 
did  so  wantonly  or  voluntarily.1 


1  As  this  will  be  regarded  as  a  leading  case  on  this  subject,  we  give  the 
opinion  in  full,  delivered  by  King,  J.  After  quoting  the  act  as  we  have 
given  it  in  the  text,  he  says,  — 

"  David  Brooks,  a  manager  in  the  office  of  the  Ohio  &  Atlantic  Tele- 
graph Company,  being  under  examination  as  a  witness  before  an  alder- 
man of  the  city,  engaged  in  taking  depositions  under  a  rule  of  this  court, 
to  quash  a  domestic  attachment,  issued  against  an  alleged  absconding 
debtor,  being  asked  whether  a  telegraph  despatch  had  been  sent  by  M. 
Freedmau  &  Co.  to  Freedman  &  Co.  of  Pittsburg,  and  answering  in  the 
affirmative,  he  was  required  to  produce  it. 

"This  he  declined  doing,  admitting  that  he  had  the  despatch  in  his  pos- 
session, claiming  to  be  exempt  from  any  obligation  to  do  so,  under  the 
provision  of  the  Act  of  Assembly  above  recited. 

"  The  alderman  suspended  his  proceedings  in  order  that  the  objection 
of  the  witness  should  be  submitted  to  the  decision  of  this  Court.  The 
question  for  solution  is,  whether  the  production  of  a  telegraphic  despatch 
by  any  person  connected  with  any  line  of  telegraph  in  this  Commonwealth, 
when  required  to  do  so,  being  under  examination  as  a  witness  in  a  judi- 
cial proceeding,  is  the  '  unlawful  exposure  of  another's  business  or  acts,' 
[860] 


CHAP,  vn.]  EVIDENCE.  §  379 

§  379.  A  similar  decision  was  made  in  St  Johns, 
Newfoundland,1  where  it  became  important  in  a  fel- 

subjecting  the  telegraph  officer  to  the  penalty  prescribed  by  the  act. 
If  so,  of  course  the  witness  cannot  be  compelled  to  answer,  for  no  court  of 
justice  can  or  would  compel  a  man  to  commit  a  crime  against  the  public 
law. 

"  It  must  be  apparent  that  if  we  adopt  jthis  construction  of  the  law,  the 
telegraph  may  be  used,  with  the  most  absolute  security,  for  purposes  de- 
structive to  the  well-being  of  society;  a  state  of  things  rendering  its  abso- 
lute usefulness  at  least  questionable.  The  correspondence  of  the  traitor, 
the  murderer,  the  robber,  and  the  swindler,  by  means  of  which  their 
crimes  and  frauds  could  be  the  more  readily  accomplished,  and  their  de- 
tection and  punishment  avoided,  would  become  things  so  sacred  that  they 
never  could  be  accessible  to  the  public  justice,  however  deep  might  be 
the  public  interest  involved  in  their  production.  For,  the  result  of  the 
principle  contended  for  is,  that  the  seal  of  secrecy  is  placed  upon  all 
telegraph  communication  as  well  in  courts  of  justice  as  elsewhere,  and 
that  they  are  to  be  classed  with  privileged  communications,  such  as  those 
between  husband  and  wife,  counsel  and  client  The  wife  or  husband  are 
not  permitted  to  testify  against  each  other,  nor  is  the  counsel  permitted  to 
reveal  the  secrets  of  his  client  because,  otherwise,  these  most  important 
social  relations  could  not  effectively  exist. 

"  The  claim  that  society  has  on  the  testimony  of  all  its  members, 
in  courts  appointed  to  administer  public  justice,  is  made  to  give  way  in 
such  cases  to  the  maintenance  of  other  great  relations,  in  which  the  public 
are  even  more  interested.  If  the  legislature  had  intended  to  place  tele- 
graph communications  on  a  similar  basis,  it  would  have  been  easy  to  have 
said,  that  no  person  connected  with  any  line  of  telegraph  should  be  per- 
mitted to  produce  a  telegraphic  despatch,  or  to  prove  its  contents,  in  a 
court  of  justice,  without  the  assent  of  the  parties  to  it.  Had  such  a  direct 
proposition  been  placed  before  the  legislature,  I  cannot  think  that  it  would 
have  prevailed ;  and  I  am  unwilling  to  give  this  law  such  a  construction 
as  to  produce  precisely  the  same  results  as  would  have  followed  such  a 
direct  enactment. 

"  The  real  intent  and  object  of  this  law  was  to  prevent  the  betrayal 
of  private  affairs,  communicated  through  the  telegraph  by  those  connected 
with  it,  for  the  promotion  of  private  gain,  or  the  gratification  of  idle  gossip. 


1  In  the  matter  of  Waddell,  before  the  Chief  Justice  of  Newfoundland, 
reported  in  a  pamphlet  entitled,  "  Cases  relating  to  Telegraphs  and  Tele- 
grams." By  Theodore  Bacon,  1866,  p.  85. 

[361] 


§  379  EVIDENCE.  [PART  n. 

ony  case  to  have  the  contents  of  certain  despatches,  in 
a  proceeding  before  the  Stipendiary  Magistrates.  The 
statute  incorporating  the  New  York,  Newfoundland, 
&  London  Telegraph  Company  required  the  opera- 


This  new  and  wonderful  mode  of  communication,  and  the  impossibility  of 
maintaining  otherwise  the  confidence  necessary  to  the  existence  of  private 
correspondence,  required  such  a  law  as  that  before  us.  But  in  using  the 
phrase '  unlawfully  expose  another's  business  or  acts,'  the  legislature  cer- 
tainly show,  that  they  did  not  consider  all  exposures  of  another's  business 
or  acts  '  communicated  through  telegraph,'  by  a  party  connected  with  it, 
to  be  '  unlawful,'  otherwise  they  would  not  have  rendered  punishable  only 
'  unlawful  exposures.' 

"  If  we  are  asked  what  are  lawful  exposures  of  business  or  acts  com- 
municated through  telegraph,  the  answer  would  seem  to  be,  exposures 
made  in  courts,  in  the  course  of  administration  of  public  justice ;  or  ex- 
posures made  to  the  public  authorities  for  the  sole  and  bond  fide  motives 
of  preventing  crime,  or  leading  to  its  detection  or  punishment.  The 
analogies  of  the  law  show  this  distinction  between  the  lawful  and  unlaw- 
ful exposure  of  secret  communications.  Thus  a  grand  juror  is  sworn 
to  secrecy;  yet  when  the  testimony  of  a  grand  juror  is  absolutely  re- 
quired in  a  court  of  justice,  he  is  produced  to  testify.  All  the  members 
of  a  court-martial  are  sworn  to  the  maintenance  of  secrecy,  as  respects 
certain  parts  of  the  proceedings ;  yet  they  are  required  to  testify  in  courts 
of  justice  in  respect  of  such  proceedings. 

"  The  law  is  jealous  of  extending  the  circle  of  persons  excused  or  in- 
terdicted from  giving  testimony. 

"  Parents  are  required  to  testify  against  children,  children  against 
parents,  brothers  against  brothers,  friends  against  friends.  Communica- 
tions by  letter,  made  under  the  deepest  obligation  of  friendship,  affection, 
or  honor,  still  must  be  produced,  if  deemed  necessary  to  the  ascertainment 
of  truth  and  the  administration  of  justice  by  the  public  tribunals. 

"  To  this  great  end  of  social  organization  all  secondary  causes  are  re- 
quired to  give  way. 

"  If  there  exists  any  great  and  overruling  public  necessity,  which  re- 
quires that  telegraphic  communication  should  be  exempted  from  this 
almost  universal  principle,  it  is  for  the  legislature,  and  not  the  judiciary,  to 
say  so.  On  the  whole,  I  am  of  opinion  that  the  witness  must  produce  the 
despatch  in  his  possession." 

See  also  Tipping  v.  Clarke,  2  Hare,  383  ;  Morison  v.  Moat,  9  Hare, 
241  ;  Williams  ».  Williams,  3  Merivale,  157;  Yovatt  ».  Winyard,  1  Jac. 
&  W.  394  ;  Prince  Albert  ».  Strange,  2  De  G.  &  Smales,  652-677. 
[362] 


CHAP.  VII.]  EVIDENCE.  §  381 

tor,  agent,  or  servant  to  make  oath  that  he  would  not 
wilfully  divulge  the  contents  of  the  message ;  and, 
like  the  Pennsylvania  statute,  made  the  violation  a 
misdemeanor  punishable  with  fine  and  imprisonment. 
Sir  Francis  Brady,  the  Chief  Justice,  held  that  "  com- 
munications or  messages  sent  through  a  telegraph  of- 
fice are  not  in  law  privileged  communications ;  and 
that  as  the  operator  or  other  servant  of  the  company 
is  compelled  to  attend  a  judicial  proceeding,  they  are 
bound  to  disclose  the  contents  of  such  message,  and  in 
so  doing  they  do  not  violate  the  oath  they  have  taken ;  " 
and  cites  the  opinion  of  Lord  Ellenborough  in  Lee  v. 
Birrell,1  as  supporting  this  view  in  a  case  very  analo- 
gous in  its  circumstances. 

§  380.  Telegraph  messages  are  admissible  in  evi- 
dence against  a  person,  as  evidence  of  his  declarations, 
when  they  are  shown  to  be  in  his  handwriting ;  and  they 
will  also  be  allowed  to  go  to  the  jury  as  tending  to  prove 
communications  by  him  to  the  person  to  whom  they  are 
addressed,  when  it  appears  that  they  were  received  by 
the  operator  and  put  upon  their  transit  over  the  wires. 

The  case  is  analogous  to  that  of  letters  deposited  in 
the  post-oifice,  properly  directed,  where  the  rule  is, 
that  proof  of  these  facts  furnishes  evidence  tending 
to  show  that  they  reached  their  destination,  and 
were  received  by  the  person  to  whom  they  were  ad- 
dressed.2 

§  381.  Telegraph  despatches  from  the  wife  of  a 
defendant,  in  an  action  on  the  case  for  conspiracy,  are 
not  admissible  as  evidence  against  the  defendant;  for, 

1  3  Camp.  337. 

2  Commonwealth  v.  Edward  P.  Jeffries,  7  Allen  K.  548. 

[363] 


§  383  EVIDENCE.  [PART  n. 

as  declarations  of  the  wife,  they  could  not  be  allowed 
in  evidence  against  the  husband.1 

§  382.  In  an  action  by  the  sender  against  the  com- 
pany for  failure  to  discharge  its  duty  with  reference  to 
the  transmission  of  the  message,  the  burden  of  proof 
would  rest  upon  the  company  to  bring  itself  within 
any  exception  to  its  liability  ;  as,  for  example,  that  the 
message  was  sent  as  an  unrepeated  message.  For  if, 
by  virtue  of  its  right  to  make  reasonable  regulations 
for  the  transaction  of  its  business,  it  had  made  certain 
rules  affixing  conditions  to  its  liability,  it  would  have 
to  show,  affirmatively,  not  only  that  it  had  made  and 
published  the  regulations,  but  that  the  sender  had  fail- 
ed to  comply  with  them.  If  it  had  published  the  rule 
of  the  company  that  it  would  not  be  liable  for  unre- 
peated messages,  and  the  plaintiff  had  shown  a  deliv- 
ery of  the  message,  for  transmission,  to  the  operator, 
and  a  failure  on  its  part  to  transmit  with  fidelity  and 
promptness,  its  liability  would  be  presumed ;  and  if  the 
message  had  been  sent  as  an  unrepeated  message,  to 
avail  itself  of  this  defence,  it  must  show  the  fact.2 

§  383.  We  have  seen,  that  in  case  of  failure  on  the 
part  of  the  sender  of  the  message  to  comply  with  the 
rules  and  regulations  of  the  company  by  which  it  im- 
poses conditions  to  its  liability,  the  non-compliance 
with  such  conditions  will  not  relieve  the  company  from 
liability  for  loss,  where  the  company  has  been  guilty  of 
negligence.3 

Whether  the  telegraph  company  which  relies  upon 

1  Bcnford  v.  Sanner,  40  Pa.  St.  R.  9. 
*  Pierce  on  American  R.R.  Law,  pp.  467,  468. 
3  Birney  v.  N.Y.  &  Wash.  Prin.  Teleg.  Co.  18  Md.  341. 
[364] 


CHAP.  VII.]  EVIDENCE.  §  386 

the  defence  that  it  has  been  relieved  from  liability  by 
the  failure  on  the  part  of  the  sender  to  comply  with 
such  conditions,  is  required  also  to  disprove  negligence, 
is  an  unsettled  question. 

There  are  many  authorities  to  show  that  in  case  of 
common  carriers,  the  only  effect  of  a  special  contract 
is  to  add  to  the  exceptions  imposed  by  law,  of  the  act 
of  God  and  the  public  enemy,  those  resulting  from 
unavoidable  accidents,  and  to  still  leave  it  incumbent 
on  the  common  carrier  to  show  that  the  loss  was  not 
occasioned  by  its  negligence.1 

§  384.  To  what  extent  this  rule  will  be  applied  to 
telegraph  companies  remains  yet  to  be  determined. 

It  will  probably  be  held,  whatever  may  be  the  ex- 
tent of  responsibility  fixed  upon  them,  that  it  devolves 
upon  the  company  to  show,  as  far  as  the  nature  of  the 
case  will  admit  of,  that  due  care  and  diligence  were 
used  in  the  transmission  and  delivery  of  the  message, 
and  that  its  lines  were  in  proper  working  order,  and 
its  batteries,  and  such  other  machinery  as  it  may  use, 
were  in  proper  condition. 

§  385.  In  an  action  ex  delicto  against  the  company, 
the  burden  of  proof  is  upon  the  plaintiff  to  show  that 
the  injury  was  occasioned  by  the  negligence  of  the 
company ;  and  not  only  this,  but  he  must  show  in  ad- 
dition that  his  own  negligence  did  not  contribute  to 
the  injury  complained  of.2 

§  386.  The  modus  operandi  of  transmitting  mes- 

1  Parsons  v.  Monteath,  13  Barb.  353;  Swindler  v.  Hilliard,  2  Richard- 
son, 286;  Davidson  v.  Graham,  2  Ohio  R.  (N.S.)  131. 

2  Robert  Dickey  &  wife  v.  The  Maine  Teleg.  Co.  43  Me.  492;  Ken- 
nard  v.  Burton,  25  Me.  R.  39-49. 

[365] 


§  386  EVIDENCE.  [PART  n. 

sages,  and  all  other  matters  connected  with  the  work- 
ings of  the  batteries  of  the  telegraph,  the  adjustment  of 
insulators,  wires,  etc.,  are  so  far  matters  of  science  and 
skill,  as  to  render  the  opinions  of  experts  admissible  in 
evidence ;  so,  also,  as  to  the  question  of  the  compe- 
tency and  skill  of  the  operators ;  and  so,  also,  in  all 
cases  of  infringement  of  patent  rights.1 

1  F.  O.  J.  Smith  v.  I.  W.  Clark,  10  Am.  Law  Journal,  155  ;  s.C.  15 
How.  U.S.  62-142;  Fenwick  v.  Bell,  47  Eng.  Com.  Law  R.  312;  Beck- 
with  v.  Sydebotham,  1  Campbell,  116;  Webb  v.  Manchester  &  Leeds 
R.R.  Co.  1  Railway  (Eng.)  Cases,  576. 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  389 


CHAPTER  VIII. 

MEASURE    OF    DAMAGES. 

§  387.  THE  measure  of  damages  in  actions  against 
telegraph  companies  will  be  determined  by  the  same 
general  principles  which  are  applicable  to  cases  against 
other  corporations  or  individuals. 

So,  likewise,  in  cases  between  individuals  where  the 
telegraph  has  been  used  as  the  medium  of  contract. 

§  388.  It  may  be  important  to  notice  certain  dis- 
tinctions which  obtain  in  the  measurement  of  dam- 
ages in  actions  ex  contractu  and  in  actions  ex  delicfo. 
In  the  former  a  wider  range  is  allowed  in  the  estimate 
of  damages  than  in  the  latter,  if  the  contract  shows 
that  such  was  in  contemplation  of  the  parties,  or 
would  have  been  contemplated  if  they  had  fully  in- 
formed themselves  as  to  the  facts.  In  actions  ex  de- 
licto  the  estimate  is  restricted  to  such  damages  as  are 
the  natural  and  proximate  consequences  of  the  act 
complained  of,  except  in  cases  where,  under  well- 
known  rules,  vindictive  or  exemplary  damages  should 
be  given. 

.  §  389.  But  when  the  contract  between  the  parties 
does  not  show  they  had  in  contemplation  this  wider 
range  in  the  estimate  of  damages,  the  measure  of 

[367] 


§  389  MEASURE    OF    DAMAGES.  [PART  II. 

damages  seems  to  be  substantially  the  same  in  either 
kind  of  action. 

The  true  rule  for  estimating  damages  in  actions  ex 
contractu  may  be  stated  thus :  The  defendant  is  liable 
only  for  such  damages  as  may  fairly  and  substantially 
be  considered  as  arising  naturally,  i.e.  according  to  the 
usual  course  of  things  —  from  the  breach  of  the  con- 
tract, or  —  and  here  is  where  the  measure  of  damages 
takes  the  wider  range  —  for  whatever  damages  may 
fairly  be  supposed  to  have  been  within  the  contem- 
plation of  the  parties. 

The  rule  in  actions  ex  delicto  is,  that  the  damages 
to  be  recovered  must  be  the  natural  and  proximate 
consequence  of  the  act  complained  of.  This  is  the 
rule  when  no  malice,  fraud,  oppression,  or  evil  intent 
intervenes. 

The  damages  which  may  be  considered  as  arising 
naturally,  according  to  the  usual  course  of  things, 
from  the  breach  of  the  contract,  are  substantially  the 
same  as  damages  which  are  the  natural  and  prox- 
imate consequences  of  the  wrong  complained  of. 

The  rule  in  cases  ex  contractu  has  been  stated  thus : 
The  defendant  is  liable  only  for  such  damages  as  were 
contemplated  by  the  parties,  or  may  reasonably  be 
supposed  to  have  entered  into  the  contemplation  of 
the  parties  at  the  time  of  making  the  contract.1 

Mr.  Sedgwick  says,  "  The  contract  itself  furnishes 
the  measure  of  damages."2 

The  rule  as  laid  down  by  the  Supreme  Court  of 
Maine  is,  that  the  damages  recoverable  in  an  action  qf 

1  Williams  ».  Barton,  13  Louisiana,  404;  Calvit  v.  McFaclden,  13 
Texas,  324.  *  Sedgwick  on  Damages,  p.  209. 

[368] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  390 

contract  are  limited  to  such  as    are   the   immediate 
and  necessary  result  of  such  breach.1 

§  390.  The  clearest  and  most  precise  definition  of 
the  rule,  perhaps,  is  that  laid  down  in  the  case  of 
Hadley -v.  Baxendale,2  which  may  be  regarded  as  the 
leading  case  in  the  English  courts  upon  this  subject, 
and  which  has  been  adopted  in  the  subsequent  de- 
cisions.3 The  rule  there  stated  is,  "Where  two  parties 
have  made  a  contract  which  one  of  them  has  broken, 
the  damages  which  the  other  party  ought  to  receive 
in  respect  of  such  contract  should  be  either  such  as 
may  fairly  and  substantially  be  considered  as  arising 
naturally,  i.e.,  according  to  the  usual  course  of  things 
from  such  breach  of  contract  itself,  or  such  as  may 
reasonably  be  supposed  to  have  been  in  contempla- 
tion of  both  parties,  at  the  time  they  made  the  contract, 
as  the  probable  result  of  a  breach  of  it.  Now  if  the 
special  circumstances  under  which  the  contract  was 
actually  made  were  communicated  by  the  plaintiff  to 
the  defendant,  and  thus  known  to  both  parties,  the 
damages  resulting  from  the  breach  of  such  a  contract 
which  they  would  reasonably  contemplate  would  be 
the  amount  of  injury  which  would  ordinarily  follow 
from  a  breach  of  contract,  under  these  special  cir- 
cumstances so  known  and  communicated.  But,  on 
the  other  hand,  if  those  special  circumstances  were 

1  Bridges  v.  Stickney,  38  Me.  361.     See  also  Fox  ».  Harding,  7  Gush. 
516. 

2  9  Exch.  R,  341 ;  B.C.  26  Eng.  Law  &  Eq.  398 ;  Alder  v.  Keighley,  15 
Mees.  &  Wels.  117.     See  also  Leland  v.  Stone,  10  Mass.  466;    McDowell 
v.  Oyer,  21  Pa.  St.  417;  Taft  v.  Wildman,  15  Ohio,  123. 

3  But  see   Gee  v.  L.  &  Y.  Railway,  6  H.  &  N.  210;   and  note  1, 
following  page,  where  the  rule  is  criticised. 

2i  [369] 


§  390  MEASURE    OF    DAMAGES.  [l>ART  II. 

wholly  unknown  to  the  party  breaking  the  contract, 
he  at  the  most  could  only  be  supposed  to  have  had 
in  his  contemplation  the  amount  of  injury  which 
would  arise  generally,  and  in  the  great  multitude  of 
cases,  not  affected  by  any  special  circumstances,  for 
such  a  breach  of  contract.  For,  had  the  special  cir- 
cumstances been  known,  the  parties  might  have  ex- 
pressly provided  for  the  breach  of  contract  by  special 
terms  as  to  the  damage  in  that  case,  and  of  this  ad- 
vantage it  would  be  very  unjust  to  deprive  them. 
The  above  principles  are  those  by  which  I  think  the 
jury  ought  to  be  guided  in  estimating  the  damages 
arising  out  of  any  breach  of  contract." l 


1  This  was  a  case  of  speculative  damages,  in  which  the  loss  of  profits 
of  a  mill  were  claimed.  (See  on  this  subject  Fletcher  v.  Tayleur,  17  C.B. 
21;  Griffin  ».  Colver,  16  N.Y.  (2  Smith),  489;  Williams  v.  Reynolds, 
Court  of  Queen's  Bench,  reported  in  April  number,  1866,  of  Am.  Law 
Register.)  Tn  Gee  v.  Lancashire  &  Yorkshire  Railway  Co.,  6  H.  &  N. 
210  (A.D.  1860),  the  plaintiffs  were  possessed  of  a  cotton-mill,  and  made 
a  contract  with  the  defendants  to  transport  cotton  to  their  mill  from  Liver- 
pool, to  be  manufactured.  The  defendants  failed  to  deliver  the  cotton 
according  to  the  contract,  and  the  damages  which  the  plaintiffs  claimed 
were  for  the  loss  of  the  wages  of  the  workmen  they  had  employed,  and  of 
profits  they  would  have  made  in  running  their  mill  if  the  defendants  had 
complied  with  their  contract.  It  appeared  that  the  plaintiffs  had  no  other 
cotton  with  which  to  employ  their  mill,  and  this  was  time  and  again  called 
to  the  attention  of  the  defendants,  but  this  was  done  after  the  contract 
for  the  transportation  was  made,  and  while  the  mill  was  standing  idle. 
It  was  ruled  on  the  trial,  as  matter  of  laic,  that  the  plaintiffs  were  entitled 
to  recover  for  loss  of  profits  and  wages ;  but  the  Court  of  Review  held  that 
this  was  a  question  which  should  have  been  left  to  the  jury,  to  determine 
whether  the  stoppage  of  the  mill  was  the  natural  consequence  of  the  non- 
delivery of  the  cotton.  Baron  Wilde,  in  this  case,  thus  speaks  of  the 
ruling  in  the  case  of.Hadley  «.  Baxendale:  "For  my  own  part,  I  think 
that,  although  an  excellent  attempt  was  made  in  Hadley  v.  Baxendale  to 
lay  down  a  rule  on  the  subject,  it  will  be  found  that  the  rule  is  not  capa- 
ble of  meeting  all  cases ;  and,  when  the  matter  comes  to  be  further  con- 
[370] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  392 

§  391.  Mr.  Sedgwick,  in  his  work  on  Damages,  after 
reviewing  the  authorities,  approves  of  the  definition 
that  in  actions  ex  contractu  the  damages  "  are  such 
as  were  contemplated,  or  may  reasonably  be  supposed 
to  have  entered  into  the  contemplation  of  the  parties 
at  the  time  of  the  contract,"  as  the  true  rule.1 

§  392.  The  rule  is  thus  stated  in  New  York,  in 
Griffin  -y.  Colver : 2  "  The  broad,  general  rule  in  such 
cases  is,  that  the  party  injured  is  entitled  to  recover 
all  the  damages,  including  gains  prevented,  as  well  as 
los'ses  sustained ;  and  this  rule  is  subject  to  but  two 
conditions :  the  damages  must  be  such  as  may  be 
fairly  supposed  to  have  entered  into  the  contemplation 
of  the  parties  when  they  made  the  contract ;  that  is, 
must  be  such  as  might  naturally  be  expected  to  follow 
its  violation ;  and  they  must  be  certain  both  in  their 
nature,  and  in  respect  to  the  cause  from  which  they 
proceed. "3 


sidered,  it  will  probably  turn  out  that  there  is  no  such  thing  as  a  rule  as 
to  the  legal  measure  of  damages  applicable  to  all  cases. 

1  Sedgwick  on  Damages,  p.  77. 

1  16  N.Y.  R.  489. 

8  Mr.  Redfield,  in  his  chapter  on  Telegraph  Companies,  sec.  189  b,  sub- 
division 18,  says,  "The  company  must  make  good  the  loss  resulting  from 
any  default  on  their  part."  After  referring  to  Griffin  v.  Colver,  and 
Landsberger  v.  Magnetic  Teleg.  Co.,  he  makes  fine  practical  discrimina- 
tions in  subdivision  19  :  "  We  do  not  apprehend  there  is  any  valid  objec- 
tion to  the  application  of  this  rule  of  damages  to  the  case  of  telegraph 
companies,  on  the  ground  of  the  secrecy  and  reserve  with  which  such 
correspondence  is  commonly  conducted,  and  that  consequently  the  com- 
panies have  not  in  most  cases  any  sufficient  data  to  form  any  just  apprecia- 
tion of  the  extent  of  the  responsibility.  The  rule  is  not  based  so  much 
upon  what  is  supposed  to  have  been  the  actual  expectation  of  the  parties, 
as  what  it  ought  to  have  been  under  the  circumstances,  if  their  minds  had 
been  drawn  towards  the  contingency  of  a  failure  in  performance.  And  if 
one  or  both  the  parties  choose  to  enter  into  the  contract  in  such  ignorance 

[371] 


§  393  MEASURE    OF    DAMAGES.  [PART  II. 

§  393.  We  will  now  proceed  to  give  the  telegraph 
cases  where  those  rules  have  been  considered. 

The  rule  as  to  speculative  damages,  so  clearly  laid 
down  in  the  leading  English  case  of  Hadley  v.  Baxen- 
dale,  has  been  recognized  and  approved  in  the  cases 
in  which  telegraph  companies  were  the  defendants. 

This  doctrine  was  announced  in  the  cases  of  Steven- 
son v.  The  Montreal  Telegraph  Company,  and  King- 
horn  v.  The  Montreal  Telegraph  Company,  decided 
in  the  Queen's  Bench  of  Upper  Canada ; l  where  it  was 

of  the  facts  as  not  to  have  been  capable  at  the  time  of  estimating  the  real 
extent  of  the  responsibility  assumed,  that  can  be  no  sufficient  ground  to 
exonerate  him  from  the  full  extent  of  responsibility  attaching  to  the  con- 
tract. The  rule  of  responsibility  is  the  same  for  all  who  freely  enter  into 
the  same  contract,  whether  fully  or  correctly  informed  of  the  extent  of  the 
obligation  or  not,  provided  they  are  not  misled  by  the  opposite  party." 

1  Stevenson  v.  Montreal  Telegraph  Co.  16  Upper  Canada  R.  530  ; 
Kinghorn  v.  The  Montreal  Telegraph  Co.  18  Upper  Canada  R.  60.  In 
neither  case  was  the  question  of  damages  properly  before  the  Court  for 
*  consideration,  as  they  were  decided  for  defendants  upon  other  grounds. 
In  the  case  of  Stevenson  v.  The  Montreal  Telegraph  Co.,  the  message 
was  transmitted  from  Montreal  to  New  York  City,  and  passed  over  inde- 
pendent lines  with  which  the  defendant's  line  connected.  There  was 
delay  in  its  deliver)'  at  New  York ;  and  it  was  sought  to  hold  the  defend- 
ants liable  for  the  neglect  of  the  last  connecting  company.  The  Court 
held  they  were  not  liable,  but  only  for  transmission  over  their  own  line. 

The  message  was,  "Am  disposed  to  realize;  sell  1500  barrels."  It 
in  fact  referred  to  flour,  and  was  not  received  by  the  plain  tiffs'  merchants 
in  New  York  until  after  business  hours  had  closed.  Had  it  been  promptly 
delivered,  it  would  have  reached  them  within  business  hours.  In  the 
mean  time  the  price  of  flour  had  fallen  materially. 

Upon  the  question  of  damages,  Robinson,  C.J.,  said,  "  Then,  as  to  the 
last  point,  it  strikes  me  that  the  endeavor  to  make  the  defendants  liable, 
on  account  of  some  hours'  or  a  day's  delay  on  the  part  of  The  New  York 
Telegraph  Co.,  to  the  damages  that  were  claimed  in  this  action  [to  wit, 
special  damage  by  reason  of  the  flour  not  being  sold  by  the  plaintiffs' 
agent  as  soon  as  it  otherwise  would  have  been] ,  was  one  that  could  not 
in  law  be  maintained,  and  certainly  not  in  reason.  No  intimation  was 
given  to  the  office  in  Hamilton  that  the  plaintiff's  message  was  on  business 
[372] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  393 

held  that,  in  order  to  the  recovery  of  the  loss  of  profits, 
the  message  itself  must  disclose  to  the  company,  or 

of  great  commercial  importance,  and  requiring  instant  attention,  so  that 
the  failure  of  an  hour  or  two  in  delivering  the  message  at  New  York  from 
the  office  to  the  person  to  whom  it  was  directed  might,  owing  to  fluctua- 
tions in  the  flour  market,  occasion  the  loss  of  many  hundred  pounds.  The 
words,  '  Am  disposed  to  realize;  sell  1500  barrels,'  do  not  seem  to  denote 
particular  urgency  as  to  time.  Would  the  agent  receiving  such  a  message 
be  liable  in  damages  if  he  delayed  a  day  or  two  to  act  upon  it  ?  Whether 
he  would  or  not,  cannot  decide  the  question  as  between  these  parties. 

"  To  expect  to  make  the  defendants  liable,  upon  the  evidence  given  in 
this  case,  for  the  difference  in  price  between  the  time  when  Newman  &  Co. 
received  the  message,  and  the  time  when  they  might  have  got  it,  and 
might  have  acted  upon  it,  would  be  scarcely  more  reasonable,  I  think, 
than  it  would  be  to  expect  to  make  the  proprietors  of  the  Cunard  line  of 
steamers  liable  for  the  loss  incurred  by  the  failure  of  a  house  on  which  a 
bill  was  drawn  from  this  country,  and  remitted  by  their  steamer,  during 
the  delay  of  a  day  or  two  on  the  voyage,  which  by  due  dilligence  might 
have  been  avoided ;  or  to  make  a  railway  company  liable,  for  being  some 
hours  behind  time,  for  an  accidental  damage  to  a  passenger  who  arrived 
too  late  to  attend  to  an  important  sale,  or  to  give  directions  in  some  critical 
point  of  his  affairs.  These  are  damages  not  reasonably  to  be  supposed  to 
have  been  within  the  contemplation  of  the  parties  in  transacting  the 
business  in  question,  and  therefore  not  to  be  recovered,  except,  perhaps, 
where  there  is  something  fraudulent  or  wilfully  wrong  on  the  part  of  the 
company  failing  in  its  duty." 

Burns,  J.,  who  delivered  the  dissenting  opinion,  and  held  that  the 
defendants  were  responsible  for  the  acts  of  the  connecting  lines,  re-affirms 
the  doctrine  laid  down  in  Hadley  v.  Baxendale,  in  reference  to  speculative 
damages.  He  says,  "  I  think  the  learned  Chief-Justice  was  right  in  telling 
the  jury  that  his  impression  was  that  for  mere  negligence  the  fall  in  the 
market  would  not  give  the  plaintiff  a  ground  of  action  of  the  nature  set 
up  in  this  case  against  the  defendants,  unless  the  defendants  had  been 
informed  of  the  object  of  the  message.  They,  not  being  flour  dealers, 
cannot  be  supposed  to  know  what  the  fluctuations  of  the 'market  may  have 
been,  or  whether  flour  then  was  on  the  decline  or  rise.  The  case  of  Had- 
ley v.  Baxendale  (9  Exch.  341)  has  laid  down  the  true  rule  upon  this 
subject.  The  cases  are  collected  there  which  bear  upon  the  question. 
Trying  this  case  by  the  rule,  it  may  be  asked,  How  is  it  possible  for  any 
one  to  say  that  in  the  contract  to  transmit  the  message  in  question  to  New 
York,  either  the  rise  or  the  fall  of  the  flour-market  entered  into  the  con- 
sideration of  the  matter,  so  far  as  the  defendants  were  concerned  ?  It  may 
have  formed  an  ingredient  with  the  plaintiff',  it  is  true,  but  then,  as  I  have 

[373] 


§  393  MEASURE    OF    DAMAGES.  [PART  II. 

the  company  must  otherwise  be  informed  of  the  state 
of  facts  which  would  make  such  damage  within  the 

before  remarked,  he  should  have  communicated  that  information  to  the 
defendants,  so  that  in  fact  that  consideration  might  be  said  fairly  to  be 
imported  into,  and  form  part  of,  the  contract.  The  defendants  could  not 
imply  it  from  the  words  of  the  message.  And  suppose  when  the  message 
arrived  in  New  York  it  was  found  that  the  market,  instead  of  falling,  was 
rising ;  how  could  any  one  tell  whether  the  plaintiff's  agent  would  or  wonld 
not  have  sold  the  flour  in  the  face  of  a  rising  market  any  more  than  in 
the  face  of  a  falling  market  ?  It  is  only  mere  conjecture,  and  we  see  it 
proved  in  this  very  case,  as  an  illustration  of  what  I  say,  that  the  parties 
declined  to  sell  in  the  face  of  a  falling  market  after  the  message  was  re- 
ceived, and  held  the  flour  until  January  after. 

"The  evidence  shows  that  the  plaintiff's  agent  thought  they  might  have 
sold  some  four  hundred  barrels  on  the  26th  of  November,  if  the  message 
had  been  received  in  business  hours,  which  might  have  given  the  plaintiff 
about  seventy-five  dollars  more  than  the  price  was  the  next  day.  There 
was  no  certainty  that  even  four  hundred  barrels  could  have  been  sold ; 
the  agent  only  thought  perhaps  he  might  have  effected  sales  to  that  extent. 
If  a  contract  had  been  entered  into  to  deliver  on  any  particular  day  a 
quantity  of  flour  at  any  particular  price,  and  the  failure  to  do  it  had  been 
caused  by  the  non-receipt  of  such  a  message,  then  the  case  would  have 
presented  some  positive  evidence.  At  present  the  evidence  presents 
merely  a  conjectural  view,  —  that  possibly  the  plaintiff's  agent  might  on 
the  Monday  morning  have  found  a  purchaser  for  some  portion  of  the  flour, 
and  also  that  they  would  have  sold  it  at  the  then  price  in  the  market.  It 
appears  to  me  quite  impossible  to  establish  from  such  evidence  what  injury 
the  plaintiff  can  or  may  have  sustained.  The  case  of  Crouch  v.  The  Great 
Northern  Railway  Co.  (11  Exch.  742)  confirms  the  former  case  of  Ilad- 
ley  v.  Baxendale,  and  establishes  that  in  an  action  against  a  carrier  for 
breach  of  duty  in  not  carrying  goods,  the  carrier  is  not  liable  for  loss  of 
business.  Again,  in  the  case  of  Hamlin  ».  The  Great  Northern  Railway 
Co.  (1  H.  &  N.  408),  the  Court  of  Exchequer  laid  down  this  rule :  '  In 
actions  for  breaches  of  contract  the  damages  must  be  such  as  are  capable 
of  being  appreciated  or  estimated.  The  plaintiff  is  entitled  to  nominal 
damages  at  all  events,  and  such  other  damages  of  a  pecuniary  kind  as  he 
may  have  really  sustained  as  a  direct  consequence  of  the  breach  of  con- 
tract Each  case  of  this  description  must  be  decided  with  reference  to 
the  circumstances  peculiar  to  it ;  but  it  may  be  laid  down  as  a  rule,  that 
generally,  in  actions  upon  contracts,  no  damages  can  be  given  which  can- 
not be  stated  specifically,  and  that  the  plaintiff  is  entitled  to  recover  what- 
ever damages  naturally  result  from  the  breach  of  contract.' " 

The  other  case,  of  Kinghorn  v.  The  Montreal  Telegraph  Co.,  was  an 
[374] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  394 

contemplation  of  the  parties  at  the  time  of  the  delivery 
of  the  message  for  transmission. 

o 

§  394.  To  the  same  effect  was  the  case  of  Lands- 
berger  v.  The  Magnetic  Telegraph  Company,1  decided 
in  the  Supreme  Court  of  New  York,  where  Hadley  v. 
Baxendale,  and  Griffin  v.  Colver,  are  approved. 

It  was  an  action  against  the  telegraph  company  by 
the  sender  of  the  message,  to  recover  damages  for 
failure  on  the  part  of  the  company  to  promptly  deliv- 
er the  message  intrusted  to  it  for  transmission.  The 
plaintiffs  had  a  contract  with  Locan  &  Co.,  of  San 
Francisco,  to  buy  for  them  in  New  York  a  quantity 
of  pistols,  and  deliver  them  in  San  Francisco  by  the 
steamer  which  should  leave  New  York  on  the  20th 
of  January,  1857,  and  were  to  receive  a  commission 
therefor  ;  agreeing  to  hold  themselves  responsible  in 
the  sum  of  five  hundred  dollars,  to  be  paid  Locan  & 
Co.  if  they  failed  to  fulfil  the  agreement. 

action  against  the  company  to  recover  damages  for  negligence  in  failing 
to  deliver  the  message  to  a  connecting  line  in  proper  time,  by  means 
whereof  the  plaintiff  lost  the  sale  of  the  rye  to  which  the  communications 
referred,  "  and  that  the  market  price  of  rye  having  immediately  thereafter 
fallen,  and  having  so  continued  up  to  the  time  of  the  action,  the  plaintiff 
had  lost  great  gain  and  profits  which  would  have  accrued  to  him  from  the 
sale  of  the  rye,"  etc. 

The  message  was,  "  Will  give  you  eighty  cents  for  rye."  The  reply 
was,  "  Do  accept  your  offer.  Ship  to-morrow  fifteen  or  twenty  hundred." 

The  Court  held  that  these  two  messages  constituted  no  contract,  and 
hence  the  question  of  damages  was  not  before  the  Court.  But  on  the 
question  of  damages  it  is  said,  "  In  order  to  charge  the  defendants  with 
the  fluctuations  of  the  market,  the  parties  using  the  telegraph  should 
inform  the  company  of  the  facts,  the  importance  of  the  message,  and  other 
things  connected  with  it,  so  that  it  may  be  known  on  both  sides  what  the 
nature  of  the  undertaking  or  duty  is,  and  that  these  matters  should  be 
treated  as  imported  into  and  forming  part  of  the  contract  and  duty  of  the 
defendants  in  the  transmission  of  telegraph  messages." 

1  32  Barb.  530. 

[375] 


§  39-4  MEASURE    OF    DAMAGES.  [PART  II. 

The  plaintiffs  forwarded  the  money  —  ten  thousand 
dollars  —  to  New  York,  to  enable  them  to  fulfil  the 
agreement.  Being  unable  to  reach  New  York  in 
time  to  make  the  purchase  in  person,  one  of  the 
plaintiffs,  en  route,  sent  the  following  telegraphic  mes- 
sage, which  was  carried  by  a  special  messenger  to 
New  Orleans,  and  there  delivered  to  defendants  for 
transmission  by  their  line:  — 

"  J.  LAXDSBERGEE  &  Co.,  28,  Broad  Street,  New  York. 
"  Get  tea  thousand  dollars  of  the  Mail  Company." 

This  message  was  received  by  the  defendants  in 
New  Orleans,  on  the  16th  of  January,  and  the  next 
day  was  transmitted  to  and  received  at  their  office  in 
New  York,  but  addressed  to  "  H.  P.  Lammeyer."  No 
such  person  was  found,  and  the  defendants  tele- 
graphed to  their  office  in  New  Orleans  for  "  better 
address." 

From  the  17th  to  23d  of  that  month,  communica- 
tion was  interrupted  by  atmospheric  causes,  and  no 
reply  was  received  to  this  office  message  until  the 
night  of  the  22d  January,  when  the  correct  address 
was  received  at  the  office  in  New  York.  On  the 
morning  of  the  23d  January  the  message  was  deliv- 
ered to  J.  Landsberger  &  Co. 

By  reason  of  its  non-delivery,  before  the  20th  the 
agreement  with  Locan  &  Co.  was  not,  and  could  not 
be,  performed,  for  the  want  of  the  money  in  the  mes- 
sage mentioned. 

The  sole  cause  of  the  non-delivery  of  the  message 
in  time  was  the  erroneous  address  received  at  the 
defendants'  office  in  New  York,  and  was  caused  evi- 

[376] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §   397 

dently  by  the  defendants'  negligence.  The  plaintiffs 
paid  Locan  &  Co.,  on  demand,  as  liquidated  damages, 
the  five  hundred  dollars. 

§  395.  The  damages  claimed  were,  1st,  the  commis- 
sions on  the  purchase  of  the  pistols  to  which  the 
plaintiffs  would  have  been  entitled  if  the  contract  had 
been  performed ;  2d,  the  amount  paid  Locan  &  Co. 
as  liquidated  damages ;  3d,  the  amount  paid  defend- 
ants for  transmitting  the  message ;  and,  4th,  interest 
on  the  ten  thousand  dollars,  the  receipt  of  which  by 
the  parties  in  New  York  was  delayed  five  days  by  the 
non-delivery  of  the  message. 

§  396.  The  Court  held  that  the  plaintiffs  could  only 
recover  the  two  last  items ;  and  the  judge  who  deliv- 
ered the  opinion,  thus  speaks  of  the  rule  of  damages, 
which  must  govern  the  case :  — 

"  It  is  perfectly  clear  in  my  judgment,  that  by 
reason  of  the  non-performance  by  the  defendants  of 
this  agreement  to  transmit  and  deliver  immediately 
the  telegraphic  despatch  above  referred  to,  the  plain- 
tiffs have  sustained  the  first  two  items  of  damage 
above  mentioned,  as  well  as  the  other  items,  and  that 
such  non-performance  was  occasioned  by  the  defend- 
ants' negligence,  for  which  they  are  liable  to  the 
plaintiffs  in  damages;  and  yet  I  am  constrained  to 
concur  with  the  referee  in  the  conclusion  at  which  he 
arrived,  that  the  amount  of  said  two  first  items  cannot 
be  recovered  against  the  defendants  in  this  action. 

§  397.  "The  rule  of  damages  applicable  to  this  and 
other  like  cases  is  clearly  stated  in  the  opinion  of 
Judge  Selden  (in  which  all  the  judges  of  the  Court 

[377] 


§  3.^7  MEASURE    OF    DAMAGES.  [PART  II. 

of  Appeals  concurred),  in  the  case  of  Griffin  v.  Colver,1 
as  follows :  '  The  broad,  general  rule  in  such  cases  is, 
that  the  party  injured  is  entitled  to  recover  all  his 
damages,  including  gains  prevented,  as  well  as  losses 
sustained ;  and  this  rule  is  subject  to  but  two  condi- 
tions: the  damages  must  be  such  as  may  fairly  be 
supposed  to  have  entered  into  the  contemplation  of 
the  parties  when  they  made  the  contract ;  that  is,  must 
be  such  as  might  naturally  be  expected  to  follow  its 
violation ;  and  they  must  be  certain,  both  in  their 
nature,  and  in  respect  to  the  cause  from  which  they 
proceed.' 

"  The  first  of  these  conditions  appears  to  me  to  ex- 
clude said  first  two  items  of  damage.  On  receiving 
this  despatch  for  transmission,  the  defendant  had  no 
intimation  whatever  in  relation  to  it,  or  the  purpose 
to  be  accomplished  by  it,  except  what  could  be  de- 
rived from  the  despatch  itself.  The  effect  of  any 
delay  in  the  delivery  of  the  despatch  would  naturally 
and  necessarily  be  equal  delay  in  the  receipt  by  the 
plaintiffs,  in  New  York,  of  the  $10,000  therein  men- 
tioned. The  defendants  were  not  informed  of  any 
special  use  intended  to  be  made  of  this  sum  of  money ; 
and  what  damages  might  they  naturally  expect  to 
follow  from  the  delay  in  the  receipt  of  if?  Clearly 
the  loss  of  the  use  of  that  sum  during  the  time  that 
its  receipt  was  delayed,  and  the  damages  for  the  loss 
of  such  use,  are,  by  the  laws  of  New  York,  determined 
to  be  the  interest  on  the  money  for  the  period  of  the 
delay,  at  seven  per  cent  per  annum. 

"The  rule  laid  down,  and  the  illustrations  thereof 

1  16  N.Y.  489. 
[378] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  •§  397 

given,  in  the  opinion  referred  to,  appear  to  me  entirely 
decisive  of  the  present  case,  and  to  fully  sustain  the 
judgment  of  the  referee. 

"  By  the  case  of  Hadley  v.  Baxendale,1  it  appears 
that  the  same  rule  is  recognized  and  acted  upon  in 
the  English  courts."2 

1  9  Exch.  341. 

2  In  the  late  case  of  Gildersleeve  v.  The  United  States  Teleg.  Co., 
Maryland  Court  of  Appeals,  extracts  from  which  are  given  ante,  §§  118, 
118  a,    118  &,  embracing  the  facts,   upon  the  measure  of  damages,  the 
Court  said, — 

"  Lastly,  as  to  the  measure  of  damages,  if  there  be  a  breach  of  the  con- 
tract. This  is  a  subject  about  which  there  has  been  a  considerable  diver- 
sity of  opinion,  and  great  want  of  precision  in  the  attempts  to  define  rules 
of  general  application.  But  by  the  latest  and  best-considered  cases  upon 
the  subject  the  rule  seems  to  be  now  pretty  well  established  that  a  party 
can  only  be  held  responsible  for  such  consequences  as  may  be  reasonably 
supposed  to  have  been  in  the  contemplation  of  both  parties  at  the  time  of 
making  the  contract,  and  that  no  consequence  which  is  not  the  necessary 
or  ordinary  result  of  a  breach  can  be  supposed  to  have  been  so  contem- 
plated, unless  full  information  be  imparted  to  the  party  sought  to  be  held 
liable  at  the  time  of  entering  into  the  engagement.  This  is  the  rule  fur- 
nished by  the  case  of  Hadley  i>.  Baxendale,  9  Exch.  341,  354,  and  which 
has  been  recognized  and  approved  in  Fletcher  v.  Tayleur,  33  Eng.  Law  & 
Eq.  R.  187,  191,  and  other  cases,  as  being  in  all  respects  the  most  correct 
and  precise.  The  case  of  Hadley  v.  Baxendale  was  this  :  The  plaintiffs, 
owners  of  a  steam-mill,  broke  a  shaft,  and,  desiring  to  have  another  made, 
they  left  the  broken  shaft  with  the  defendant,  a  carrier,  to  take  to  an  engi- 
neer to  serve  as  a  model  for  a  new  one.  At  the  time  of  making  the  con- 
tract the  defendant's  clerk  was  informed  that  the  mill  was  stopped,  and 
that  the  plaintiifs  desired  the  broken  shaft  to  be  sent  immediately.  Its  de- 
livery was  delayed,  however,  and  the  new  shaft  kept  back  in  consequence. 
The  plaintiffs  brought  their  action  for  a  breach  of  this  contract  with  the 
carrier,  and  they  claimed  as  special  damages  the  loss  of  profits  while  the 
mill  was  kept  idle.  But  because  it  was  not  made  to  appear  that  the  de- 
fendant was  informed  that  the  want  of  the  shaft  was  the  only  thing  that 
was  keeping  the  mill  from  operating,  it  was  held  that  he  could  not  be 
made  responsible  to  the  extent  claimed.  And  the  Court,  in  delivering  its 
judgment,  said,  '  We  think  the  proper  rule  in  such  a  case  as  the  present 
is  this :  Where  two  parties  have  made  a  contract  which  one  of  them  has 
broken,  the  damages  which  the  other  party  ought  to  receive,  in  respect  of 

[379] 


§  397  a  MEASURE    OF    DAMAGES.  [PART  II. 

§  397  a.  The  case  of  The  United  States  Teleg.  Co. 
v.  Wenger,1  very  lately  published,  was  an  action  on 


such  breach  of  contract,  should  be  either  such  as  may  fairly  and  substan- 
tially be  considered  as  arising  naturally,  i.e.,  according  to  the  usual  course 
of  things  from  such  breach  of  contract  itself,  or  such  as  may  reasonably  be 
supposed  to  have  been  in  the  contemplation  of  both  parties  at  the  time 
they  made  the  contract,  as  the  probable  result  of  the  breach  of  it.  Now,  if 
the  special  circumstances  under  which  the  contract  was  actually  made 
were  communicated  by  the  plaintiff' to  the  defendant,  and  thus  known  to 
both  parties,  the  damages  resulting  from  the  breach  of  such  a  contract, 
which  they  would  reasonably  contemplate,  would  be  the  amount  of  injury 
which  would  ordinarily  follow  from  a  breach  of  a  contract  under  these 
special  circumstances,  so  known  and  communicated.  But,  on  the  other 
hand,  if  those  special  circumstances  were  wholly  unknown  to  the  party 
breaking  the  contract,  he,  at  the  most,  could  only  be  supposed  to  have  had 
in  his  contemplation  the  amount  of  injury  which  would  arise  generally,  and 
in  the  great  multitude  of  cases  not  affected  by  any  special  circumstances 
for  such  a  breach  of  contract.  For,  had  the  special  circumstances  been 
known,  the  parties  might  have  expressly  provided  for  the  breach  of  con- 
tract by  special  terms  as  to  the  damages  in  that  case,  and  of  this  advan- 
tage it  would  be  very  unjust  to  deprive  them.'  The  same  rule  has  been 
adopted,  and  is  now  regarded  as  established,  in  the  case  of  Griffin  v.  Colver, 
16  N.Y.  R.  489,  and  Landsberger  v.  The^  American  Teleg.  Co.  32  Barb. 
530.  And,  believing  it  to  be  obviously  just  and  reasonable,  we  take  it  to 
be  the  true  rule  upon  the  subject.  And,  applying  it  to  this  case,  the 
prayer  of  the  appellee,  which  was  granted,  was  clearly  incorrect.  For,  while 
it  was  proved  that  the  despatch  in  question  would  be  understood  among 
brokers  to  mean  $50,000  of  gold,  it  was  not  shown,  nor  was  it  put  to  the 
jury  to  find,  that  the  appellant's  agents  so  understood  it,  or  whether  they 
understood  it  at  all.  '  Sell  fifty  gold,'  may  have  been  understood  in  its 
literal  import,  if  it  can  be  properly  said  to  have  any,  or  was  as  likely  to 
be  taken  to  mean  fifty  dollars  as  fifty  thousand  dollars,  by  those  not  ini- 
tiated. And  if  the  measure  of  responsibility  at  all  depends  upon  a  knowl- 
edge of  the  special  circumstances  of  the  case,  it  would  certainly  follow 
that  the  nature  of  this  despatch  should  have  been  communicated  to  the 
agent  at  the  time  it  was  offered  to  be  sent,  in  order  that  the  appellant 
might  have  observed  the  precautions  necessary  to  guard  itself  against  the 
risk.  But,  without  reference  to  the  fact  as  to  whether  the  appellant  had 
knowledge  of  the  true  meaning  and  character  of  the  despatch,  and  thus 


1  55  Pa.  St.  R.  262. 
[380] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  397  « 

the  case,  predicated  upon  a  failure  to  transmit  the  fol- 
lowing message  :  — 

"  October  10,  1864. 
"  To  J.  O'BRIEN,  58,  Wall  Street,  New  York. 

"Buy  (50)  fifty  North  Western,  fifty  (50)  Prairie  du  Chien, 
limit  forty -five  (45). 

"KEED,  McGRANN,  &  Co." 

The  order  was  repeated  by  mail.  The  plaintiff, 
receiving  no  answer  that  evening,  went  to  the  tele- 
graph office  to  inquire  about  his  message,  and  was 

enabled  to  contemplate  the  consequences  of  a  breach  of  the  contract,  the 
jury  were  instructed  that  the  appellee  was  entitled  to  recover  to  the  full 
extent  of  his  loss  by  the  decline  in  gold.  In  thus  instructing  the  jury,  we 
think  the  Court  committed  error,  and  that  its  ruling  should  be  reversed. 
As  to  the  fifth  prayer  of  the  appellant  we  think  the  Court  below  was  right 
in  rejecting  it.  It  was  certainly  the  right  of  the  appellee  to  convert  his 
gold  coin  into  currency,  and  if  he  lost  an  advantage  in  having  it  done,  in 
consequence  of  a  breach  of  contract  by  the  appellant,  it  was  a  loss  for 
which  the  former  would  be  entitled  to  recover  damages  to  the  extent  of 
indemnity." 

Here  the  question  of  knowledge  of  the  special  circumstances  of  the 
case  presents  itself  again  ;  and  also  as  to  whether  the  company  should  in- 
quire, or  the  sender  disclose.  Gildersleeve,  in  offering  his  despatch,  placed 
himself  in  a  condition  to  be  catechised  as  to  its  meaning.  The  agent 
could  and  did  read  it.  He  needed  no  more  information,  and  sought  none. 
By  neglecting  his  duty,  an  injury  was  sustained  by  the  sender.  The  gen- 
eral rule  is  correctly  stated,  and  we  see  no  difficulty  in  its  application. 
The  authorities  we  have  cited  indicate  that  the  agent  should  have  sought 
information  if  more  was  needed,  in  order  to  guard  the  company  against 
risk.  Here  was  a  commercial  transaction  clearly  indicated,  based  upon 
gold  as  a  commodity,  measured  in  its  market  value  by  constant  and  some- 
times unaccountable  fluctuations  in  the  paper  currency  and  public  credit. 
Since  gold  has  become  a  commodity,  transactions  in  it  assume  immense  pro- 
portions. Men  do  not  usually  order  the  sale  of  fifty  dollars  in  gold  by 
telegraph  in  a  distant  market.  We  cannot  imagine  a  despatch  worded 
better  than  this  to  excite  inquiry  or  reflection  as  to  probable  extent  of 
responsibility ;  and  the  operator's  negligence  in  this  respect  should  not 
afford  the  company  protection  against  laches  in  forwarding  a  perfectly 
legible  manuscript. 

[381] 


§  3976  MEASURE    OF    DAMAGES.  [PART  II. 

told  by  the  agent  that  it  had  been  sent  on,  but  was 
detained  at  Philadelphia.  The  charge  for  a  trans- 
mission to  New  York  had  been  paid.  No  request 
was  made  to  have  it  repeated  back.  The  letter  of 
the  10th,  repeating  and  referring  to  the  telegraph, 
was  received  on  the  llth  by  J.  O'Brien,  in  New  York, 
but  he  did  not  buy  because  of  the  delay  of  the  de- 
spatch. A  second  despatch  was  sent  on  the.  13th, 
and  then  the  order  was  executed. 

§  397  6.  The  opinion  of  the  Court  was  delivered  by 
Thompson,  J. :  "  The  broker  of  the  plaintiff  below 
ordered  the  purchase  of  certain  stocks  in  New  York 
for  him,  by  telegraph,  on  the  10th  of  October,  1864, 
and,  having  prepaid  the  charges,  gave  the  message  to 
the  defendants  for  transmission  to  his  correspondents 
named  therein.  The  message,  it  appears,  got  no 
further  than  Philadelphia,  although  the  defendants' 
line  extended  to  Portland,  Maine.  No  such  reason  as 
the  law  would  recognize,  indeed  no  reason  at  all,  was 
given  for  the  failure  to  transmit  the  message  to  its 
destination.  Thus  was  there  presented  a  clear  case 
of  gross  negligence  against  the  company  in  perform- 
ing its  undertaking,  and  a  consequent  liability  to  the 
plaintiff  for  such  damage  as  he  had  sustained  in  con- 
sequence thereof.  The  stock  ordered  was,  of  course, 
not  purchased  on  the  day  the  despatch  was  given  to 
the  company  to  be  transmitted,  as  it  might  have  been, 
for  it  was  not  pretended  it  was  not  in  the  market ; 
but  three  days  thereafter  it  was  procured  at  an  aggre- 
gate advance  of  $462.50.  This  difference,  the  plain- 
tiff claims,  is  the  damage  he  has  sustained  and  is 
entitled  to  recover.  Undoubtedly  this  is  the  measure 

[382] 


CHAP.  VIIT.]  MEASURE    OF    DAMAGES.  §  397  6 

of  damage  in  the  case.  The  despatch  was  such  as 
to  disclose  the  nature  of  the  business  to  which  it 
related  and  that  the  loss  might  be  very  likely  to 
occur  if  there  was  a  want  of  promptitude  in  trans- 
mitting it  containing  the  order.  In  this  respect  it 
differs  much  from  that  in  Landsberger  v.  The  Mag- 
netic Telegraph  Co.1  '  Get  ten  thousand  dollars  of 
the  Mail  Company,'  the  message  in  that  case  said,  but 
did  not  disclose  that  the  money  was  to  be  gotten  from 
the  Mail  Company  to  save .  from  failure  a  valuable 
contract ;  hence  it  was  held,  that  the  damages  arising 
from  that  cause  could  not  reasonably  be  presumed  to 
have  been  in  the  contemplation  of  the  parties  to  the 
contract,  or  not  recoverable  to  that  extent.  Here 
the  object  of  the  message  was  for  the  purpose  of 
buying  stock  as  soon  as  received  ;  and,  no  other  time 
being  named,  and  it  is  not  possible,  consistently  with 
with  any  knowledge  of  the  business  of  dealing  in 
stocks,  to  fail  to  understand  that  damage  might  en- 
sue, nay,  would  be  likely  to  ensue,  by  delay.  The 
damage  from  such  a  source  was  what  would  naturally 
have  entered  into  the  minds  of  the  sender  and  the  un- 
dertaker to  send  the  message  if  they  thought  on  the 
subject  at  all ;  and  that  they  did  think  is  true,  if  the 
witness  was  credible,  and  whose  uncontradicted  state- 
ment is  that  he  notified  the  operator  that  he  would 
look  to  the  company  for  damages  if  they  failed  in 
transmitting  the  message.  The  rule  laid  down  by  the 
learned  judge  as  to  the  measure  of  damages  was  all 
right  enough,  and  therefore  in  accordance  with  settled 
principles." 

1  32  Barb.  550. 

[383] 


§  399  MEASURE    OF    DAMAGES.  [PART  II. 

The  case  was  reversed  reluctantly,  as  stated  by  the 
Court,  on  the  ground  that  declarations  were  admitted 
in  evidence  which  were  not  res  gestce. 

§  398.  The  case  of  Parks  v.  Alta  California  Tele- 
graph Co.1  is  entirely  consistent  with  this.  It  was  an 
action  ex  contractu  ;  the  breach  alleged  was  for  failure 
to  send  the  message  within  a  reasonable  time.  The 
message  was,  "Due  $1,800;  attach  if  you  can  find 
property;  will  send  note  by  to-morrow's  mail." 
The  message  was  addressed  to  the  agent  of  the  plain- 
tiff in  a  neighboring  town. 

The  defendant  delayed  the  transmission  of  the 
message  for  such  a  length  of  time,  that  when  it 
reached  the  agent,  before  he  could  take  the  necessary 
steps  to  attach,  other  attachments  had  intervened  and 
absorbed  the  property,  and  the  debt  of  the  plaintiff 
was  lost.  The  proof  showed  that  if  the  message 
had  been  transmitted  promptly  the  debtor  had  suffi- 
cient property  which  could  have  been  subjected  by 
attachment,  to  the  satisfaction  of  the  plaintiffs  claim. 

The  Court  held,  that  the  company  were  liable  not 
only  for  the  repayment  of  the  costs  of  transmitting 
the  message,  but  also  for  the  amount  of  the  claim. 

§  399.  Here  the  message  itself  gave  the  company 
notice  of  the  object  of  the  message,  and  the  damages 
allowed  may  be  regarded  as  having  been  in  the  con- 
templation of  the  parties  at  the  time  the  contract 
was  made ;  the  Court  say,  also,  that  the  loss  of  the 
debt  was  "  the  natural  and  proximate  damages  result- 
ing from  the  breach  of  contract." ! 

1  13  Cal.  R.  422. 

*  See  also  Bryant  v.  The  American  Teleg.  Co.  (N.Y.  General  Term, 
[384] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  400 

§  400.  But  few  cases  have  come  before  the  courts, 
in  relation  to  the  loss  of  profits,  where  the  negotiations 
have  been  by  telegraph. 

The  case  of  Prosser  v.  The  Montreal  Telegraph 
Company l  presented  this  question :  — 

The  plaintiff  was  a  ship  owner ;  he  sent  a  message 
to  a  person  at  Chatham  inquiring  if  this  party  could 
load  his  vessel  with  8,000  bushels  of  wheat.  The  mes- 
sage transmitted  stated  3,000.  The  person  to  whom  it 
was  addressed,  supposing  3,000  was  the  quantity, 
replied  in  the  affirmative.  In  consequence  of  this, 
the  plaintiff  abandoned  a  contract  he  had  pending  for 
a  cargo  from  Detroit,  and  sent  his  vessel  at  once  to 
Chatham,  where  it  obtained  a  cargo  of  3,000  bushels 
only. 

The  plaintiff  claimed  as  damages  the  full  freight 
from  Chatham  to  Oswego  (the  point  to  which  the 
cargo  was  to  be  carried),  on  the  5,000  bushels  of 
wheat  which  the  vessel  would  have  carried,  and  ex- 
pected to  get  in  addition  to  the  3,000  bushels. 


1866),  1  Daly  (N.Y.)  578.  la  this  case  of  Parks  ».  Alta  California  Teleg. 
Co.  the  Court  supposes  the  case  of  transmission  of  a  message  by  the  owner 
of  a  house  which  is  situate  in  some  distant  city ;  the  message  being  trans- 
mitted to  the  sender's  agent  at  that  place,  on  the  eve  of  the  expiration  of 
the  policy  of  insurance,  directing  him  in  the  message  to  renew  the  policy ; 
or  a  direction  by  message  to  an  agent  to  have  a  bill  of  exchange  protested  ; 
and  a  neglect  by  the  telegraph  company,  in  either  case,  to  send  the  mes- 
sage promptly.  The  damage  would  be  the  loss  of  the  house  if  it  should 
burn  down  uninsured  before  the  message  was  received,  or  the  amount  of 
the  bill  with  legal  damages  thereon,  if  the  debt  were  lost  by  reason  of  the 
company's  default.  See,  also,  on  this  subject,  Brown  v.  Arrott,  6  Watts  & 
Serg.  402;  Harvey  v.  Turner,  4  Rawle,  223;  Amory  v.  Hamilton,  17 
Mass.  103 ;  Morris  v.  Summerl,  2  Wash.  C.C.  R.  203 ;  Bridge  v.  Mason, 
45  Barb.  (N.Y.)  R.  37. 

1  7  Upper  Canada  Com.  Plea  R.  23  (Com.  Plea,  Easter  Term,  Viet.). 

25  [385] 


§  401  MEASURE    OF    DAMAGES.  [PART  II. 

§  401.  The  Court  limited  him  to  the  expense  of 
sending  the  vessel  to  Chatham  and  back,  and  held 
that  he  was  not  entitled  to  claim  the  profit  he  might 
have  made  from  carrying  the  8,000  bushels.  The 
Court  say,  "It  does  not  appear  that  he  could  have 
obtained  a  freight  on  8,000  bushels  if  the  message  had 
been  correctly  transmitted.  If  it  had  been  answered 
in  the  negative,  he  would  then  have  insisted  on  his 
right  to  carry  the  corn"  (this  was  the  pending  con- 
tract which  was  broken  off  on  receipt  of  the  message 
in  reply),  "  according  to  his  contract  for  that  purpose. 
The  real  damage  he  sustained  therefore  was  for  giving 
up  that  contract.  This  is  not  alleged  in  the  declara- 
tion as  special  damage,  nor,  as  has  already  been 
stated,  was  the  fact  of  such  a  contract  having  been 
made,  communicated  to  the  defendant's  servants,  at  the 
time  the  message  was  sent ;  so  that  it  cannot  be  said 
the  damages  in  reference  to  it  were  in  contemplation 
of  the  parties  at  that  time.  Under  the  facts  shown 
we  think  the  damages  should  stand  as  assessed  at 
£25,  being  for  the  expense  of  sending  the  vessel 
from  Detroit  to  Chatham  and  back ;  which  are  the 
damages  that  naturally  flowed  from  the  breach  of  the 
defendant's  duty  or  contract,  or  which  might  have 
been  reasonably  in  the  contemplation  of  the  parties  at 
the  time." 1 

1  The  principle  that  is  to  govern  these  cases  where  a  loss  of  profits  is 
claimed,  is  stated  with  great  clearness  by  the  Supreme  Court  of  Massachu- 
setts, in  the  case  of  Fox  v.  Harding,  7  Gush.  516.  It  is  said,  "  The  rule 
has  not  been  uniform,  or  very  cleary  settled,  as  to  the  right  of  a  party  to 
claim  a  loss  of  profits  as  part  of  the  damages  for  breach  of  a  special  con- 
tract. But  we  think  there  is  a  distinction  by  which  all  questions  of  this 
sort  can  be  easily  tested. 

"  If  the  profits  were  such  as  would  have  accrued  and  grown  out  of  the 
[386] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  402 

This  is  fully  recognizing  the  principle  laid  down  in 
Hadley  v.  Baxendale. 

§  402.  A  most  important  inquiry  is  presented  upon 
the  question  of  the  measure  of  damages  in  actions  ex 
contractu  against  telegraph  companies ;  and  that  is, 
What  is  it  that  must  be  in  the  contemplation  of  the 
parties  at  the  time  of  the  delivery  of  the  message  for 
transmission  ? 

Let  us  suppose  the  case  where  the  message,  al- 
though the  words  of  it  are  plainly  written,  is  unintel- 
ligible to  the  telegraph  company,  conveying  no  idea 
to  them  of  the  object  of  the  message,  although  it  may 
be  well  understood  by  the  party  to  whom  it  is  ad- 
dressed. 

What  damages  shall  be  considered  as  being  in  con- 
templation of  the  parties  in  such  case,  in  the  event  of 
a  breach  of  contract  by  delay  or  failure  of  transmis- 
sion, or  error  or  mistake  from  which  loss  is  sustained  \ 

Is  the  sender  of  the  message  to  be  restricted  to  the 
recovery  merely  of  the  charges  he  has  paid  for  the 
transmission,  upon  the  ground  that,  the  message 
being  unintelligible  to  the  company,  nothing  more 
was  in  contemplation  of  the  parties  ? 

contract  itself  as  the  direct  and  immediate  result  of  its  fulfilment,  then 
they  would  form  a  just  and  proper  item  of  damages,  to  be  recovered  against 
the  delinquent  party  upon  a  breach  of  the  agreement.  These  are  part 
and  parcel  of  the  contract  itself,  and  must  have  been  in  the  contempla- 
tion of  the  parties  when  the  agreement  was  entered  into.  But  if  they  are 
such  as  would  have  been  realized  by  the  party  from  other  independent 
and  collateral  undertakings,  although  entered  into  in  consequence  of,  and 
by  the  faith  of,  the  principal  contract,  then  they  are  too  uncertain  and 
remote  to  be  taken  into  consideration  as  a  part  of  the  damages  occasioned 
by  the  breach  of  the  contract  in  suit."  See  also  Gee  ».  Lancashire  and 
Yorkshire  R.R.  Co.  6  H.  &  N.  210;  Lawrence  v.  Wardwell,  6  Barb.  423; 
13  How.  U.S.  307 ;  Bell  ».  Cunningham,  3  Peters,  69. 

[387] 


§  403  MEASURE    OF    DAMAGES.  [PART   II. 

§  403.  This  view  of  the  law  is  taken  in  a  case  in 
the  Fifth  District  Court  of  New  Orleans,  Edward 
Shields  v.  The  Washington  &  New  Orleans  Telegraph 
Company ; l  where  the  plaintiff  sued  for  $164  damages, 
arising  from  the  incorrect  transmission  of  a  telegraphic 
despatch,  in  which  the  word  sixty-six  was  substituted 
for  fifty-six^  the  correct  number. 

The  company  refunded  the  costs  of  the  despatch, 
but  resisted  any  liability  to  damages  by  reason  of  the 
mistake  of  the  operator.  The  judge  who  delivered 
the  opinion  of  the  Court  said,  "  What  is  the  test  of 
appreciation  of  a  despatch  like  that  which  the  plain- 
tiff received  in  this  instance  from  his  correspondent  ? 
The  despatch  read  or  said,  '  Oats,  fifty-six ;  bran,  one 
ten ;  corn,  seventy-three  ;  hay,  twenty-five.' 

"  The  person  who  sent  the  despatch  made  no  expla- 
nation to  the  operator,  and  without  explanation  how 
could  the  operator  know  whether  the  numbers  in 
question  referred  to  dollars  and  cents,  or  to  bushels 
and  bales?  Again,  how  could  the  operator  know 
whether  the  said  despatch  conveyed  an  order  to  pur- 
chase, or  an  account  of  sales  ?  And  if  he  was  bound 
to  infer  the  former,  what  information  did  the  despatch 
convey  to  his  mind  of  the  extent  of  the  order? 

"  The  meaning  of  the  despatch  was  a  secret  to  all 
but  the  parties  corresponding. 

"  Under  these  circumstances,  the  value  of  the  mes- 
sage transmitted  was  inappreciable,  and  the  telegraph 
company  had  no  means  of  knowing  the  extent  of  the 
responsibility  which  ought  to  be  involved  in  its  correct 

1  1  Livingston's  Law  Magazine,  69  ;  4  Am.  Law  Journal  (N.S.),  311. 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  405 

transmission,  upon  the  principles  contended  for  by  the 
counsel  for  the  plaintiff." 

The  judgment  was  accordingly  only  for  the  cost  of 
the  message,  and  the  costs  of  the  court.1 

§  404.  This  case  presents  a  very  important  question 
in  telegraph  law. 

If  this  decision  be  correct,  it  must  go  far  towards 
destroying  the  efficiency  of  the  telegraph  as  a  medium 
of  communication,  and  afford  telegraph  companies 
almost  entire  immunity  from  responsibility ;  for  it 
must  be  manifest,  that  it  is  wholly  impracticable  to 
communicate  to  the  operator,  in  every  instance  of  the 
transmission  of  a  message,  its  character  and  impor- 
tance, and  the  consequences  of  error  or  delay  in  its 
transmission. 

One  of  the  great  attractions  which  this  mode  of 
communication  presents,  is  the  brevity  of  the  despatch ; 
such  abreviations  being  used  in  many  cases  as  will 
enable  the  person  for  whom  it  is  intended  alone  to 
understand  it ;  and  hence  the  vast  amount  of  business 
the  telegraph  operator  is  capable  of  transacting  in 
the  transmission  and  delivery  of  messages.  So  that 
an  explanation  of  the  meaning,  importance,  and  bear- 
ing of  each  message  would  be  an  insufferable  annoy- 
ance, and,  in  the  multiplicity  of  messages  delivered 
for  transmission  could  not  be  remembered,  even  if 
the  time  could  be  spared  to  listen  to  it ;  and  it  would 
rarely  afford  any  benefit  or  advantage  to  the  company 
after  the  information  was  communicated. 

§  405.  Now  while  it  may  be  true  that  the  telegraph 

1  Although  this  was  an  action  by  the  receiver  of  the  message,  it  is 
evident  from  the  opinion,  that  the  case  was  ex  conlractu. 

[389] 


§  406  MEASURE   OF    DAMAGES.  [PART  II. 

company,  through  its  agents  and  servants,  may  not 
know  the  meaning  of  the  particular  message,  yet 
they  do  know  that  messages  of  great  value  and  im- 
portance, involving  heavy  losses  in  case  of  failure  or 
delay  or  mistake  in  their  transmission,  are  constantly 
sent  over  their  wires ;  and  they  do  know  that  they 
hold  themselves  out  to  the  public  as  prepared  at  all 
times,  and  for  all  persons,  to  transmit  messages  of 
this  description. 

The  true  rule  being,  then,  that  the  damages  must 
be  such  as  may  be  fairly  supposed  to  have  entered 
into  the  contemplation  of  the  parties  when  they  made 
the  contract,  that  is,  such  as  might  be  naturally  ex- 
pected to  follow  its  violation,  it  would  seem  that  its 
proper  application  to  telegraph  cases  would  be  this  : 
that,  although  the  message  were  unintelligible  to  the 
company,  yet  as  it  had  undertaken  to  transmit  the 
message  promptly  and  correctly,  both  parties  con- 
templated that  whatever  loss  should  naturally,  and  in 
the  usual  course  of  things,  follow  a  violation  of  this 
obligation,  the  company  should  be  responsible  for. 

§  406.  It  cannot  be  a  matter  of  consequence  for 
the  operator  to  understand  or  appreciate  the  meaning 
of  a  despatch,  for  he  must  send  it  in  any  event.  It  is 
enough  for  him  to  read  what  is  written ;  and  if  it  be 
illegible,  he  may  reject  it.  It  is  to  be  presumed  that 
the  party  receiving  the  message  will  understand  it  if 
correctly  transmitted ;  and  thus  to  transmit,  is  the 
special  duty  of  the  operator.  If  he  fail  to  do  this, 
and  so  disappoint,  mislead,  or  deceive  the  party  ad- 
dressed that  damages  are  suffered,  they  will  be  meas- 
ured by  the  extent  of  loss  and  injury  naturally 

[390] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  407 

resulting  from  the  error,  or  failure  to  deliver  the 
despatch. 

The  transaction,  of  course,  must  be  bond  fide  ;  and 
the  court  and  jury  must  be  so  informed  by  testimony, 
that  they  can  see  what  was  the  legitimate  scope  and 
meaning  of  the  message,  and  also  what  was  the  dam- 
age naturally  consequent  upon  the  misfeasance  or 
neglect. 

The  real  facts  when  developed  on  trial  afford  the 
media  through  which  the  parties  are  supposed  to 
have  looked  when  the  message  was  offered  for  trans- 
mission ;  and  thus  the  triers  of  the  case  avoid  specu- 
lative damages  on  the  one  hand,  and  arbitrary  ex 
parte  rules  of  exemption  on  the  other. 

§  407.  This  view  of  the  question  has  been  adopted 
in  the  State  of  New  York  in  the  recent  case  of  Bit- 
tenhouse  v.  The  Independent  Line  of  Telegraph.1 

It  is  there  held  that  the  telegraph  company  is  not 
excused  from  liability  for  an  erroneous  transmission 
of  a  message  from  the  fact  that  its  meaning  was  un- 
intelligible, so  long  as  the  words  were  plain ;  and 
that  where  an  order  is  sent  by  telegraph  for  the  pur- 
chase of  an  article,  and  by  the  blunder  of  the  opera- 
tor the  message  is  made  to  read  as  an  order  for  a 
different  article,  the  company  must  make  good  the 
difference  between  the  price  paid  for  the  article  the 
sender  of  the  message  actually  ordered,  if  purchased 
as  soon  as  the  mistake  was  discovered,  and  the  price 
at  which  it  could  have  been  purchased  when  the 
erroneous  message  was  delivered  to  the  person  to 
whom  it  was  addressed. 

1  1  Daly  Com.  Pleas  R.  (N.Y.)  474. 

[391] 


§  408  MEASURE   OF    DAMAGES.  [PART  II. 

The  message  delivered  for  transmission  in  this  case 
was,  "If  we  have  any  Old  Southern  on  hand,  sell 
same  before  board  —  buy  five  Hudson  at  board  — 
quote  price."  The  message  delivered  by  the  com- 
pany at  the  office  of  destination  was,  "  If  we  have 
any  Old  Southern  on  hand,  sell  same  before  board. 
Buy  five  hundred  at  board,  —  quote  price."  The 
message  was  addressed  by  the  plaintiffs  to  their 
brokers,  and  by  a  previous  understanding  between 
them  the  words  "  Old  Southern "  meant  Michigan 
Southern  Railroad  stock ;  the  words  "  five  Hudson " 
meant  five  hundred  shares  of  Hudson  River  Railroad 
stock  ;  and  the  word  "board"  meant  the  stockbrokers' 
board.  So  that  its  meaning  was  wholly  unintelligible 
to  the  telegraph  company. 

§  408.  The  Court  held,  that,  if  the  message  was  in- 
telligible to  the  person  to  whom  it  was  addressed, 
that  was  sufficient;  and  the  Court  say,  "The  language 
employed,  however  indefinite  to  others,  was  intelligible 
to  the  brokers.  The  despatch  written  was  not  sent, 
and  the  effect  of  the  error  was  to  make  it  an  order  to 
sell  the  shares  of  Southern,  and  buy  five  hundred 
more."  And  it  was  accordingly  held  that  the  plain- 
tiffs were  entitled  to  recover  of  the  telegraph  com- 
pany the  difference  between  the  price  at  which  the 
five  hundred  shares  of  the  Hudson  River  Railroad 
stock  could  have  been  bought  at  the  board  of  brok- 
ers, and  the  lowest  price  for  which  the  same  could 
have  been,  and  was,  bought  after  the  adjournment  of 
the  board  on  the  reception  of  the  corrected  message.1 

1  The  case  before  referred  to,  of  Landsberger  v.  The  Magnetic  Teleg. 
Co.  32  Barb.  530,  when  properly  considered,  we  think,  will  be  found  not  to 
[392] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  409 

§  409.  Still  another  ground  of  objection  has  been 
urged  against  the  assessment  of  damages  in  cases 

conflict  with  the  view  we  have  advanced  in  the  text,  of  the  responsibility 
in  damages  of  the  telegraph  company  for  all  losses  which  are  the  imme- 
diate and  necessary  result  of  the  breach  of  the  contract,  to  correctly  and 
promptly  transmit  and  deliver  the  message,  or,  to  use  the  language  of  Had- 
ley  v.  Baxendale,  "  such  as  may  fairly  and  substantially  be  considered  as 
arising  naturally,  i.e.,  according  to  the  usual  course  of  things  from  the 
breach  of  the  contract  itself,"  in  cases  where  the  message  is  unintelligible 
to  the  company.  It  is  true  in  that  case,  the  Court  rests  the  rejection  of 
certain  items  of  damage  upon  the  fact  that  they  were  not  in  the  contem- 
plation of  the  parties,  and  not  disclosed  by  the  message.  But  the  rejection 
of  them  might  well  have  been  placed  upon  the  ground  that  they  were  too 
remote,  and  that  they  could  not  be  said  to  be  the  direct  and  immediate 
result  of  the  breach,  or  to  fall  within  the  definition  of  the  rule  above  given 
from  Hadley  v.  Baxendale. 

And  there  can  be  but  little  doubt,  but  that  the  damages  allowed  in  that 
case  would  have  been  the  same,  had  the  message  been  intelligible  to  the 
persons  to  whom  it  was  addressed,  as  an  order  to  get  the  $10,000  from  the 
Mail  Company,  although  it  may  have  been  unintelligible  to  the  company 
transmitting  it.  For  otherwise,  it  would  show  a  case,  where,  by  simply 
changing  the  form  of  action  from  ex  conlractu  to  ex  delicto,  the  plaintiff 
could,  in  this  latter  character  of  action,  proceeding,  not  for  any  breach  of 
contract,  but  for  neglect  of  a  statutory  duty  which  the  company  was  under 
obligation  to  perform,  have  recovered  this  damage  as  being  the  natural  and 
proximate  consequences  of  the  act  complained  of. 

It  is  difficult  to  perceive,  upon  any  satisfactory  reasoning  or  principle, 
why  there  should  not  be  the  same  rule  in  the  assessment  of  damages  in 
such  cases,  if  I  allege  the  same  fact  as  constituting  on  the  one  hand  a 
breach  of  contract  safely  or  correctly  to  transmit  a  message,  or  on  the 
other,  as  a  negligent  failure  of  duty.  The  duty  is  the  same,  the  fault  the 
same,  the  inquiry  the  same,  the  result  the  same.  Why  not  the  same 
measure  of  the  injury  in  money  ?  Why  say  I  am  damaged  less  by  a  fact, 
if  I  say  the  party  failed  to  perform  a  contract,  than  I  am  if  I  allege  the 
same  fact  as  a  wrong  ?  The  contract  to  safely,  promptly,  and  correctly 
transmit  and  deliver  the  message,  just  as  it  is  written  out  and  delivered  for 
transmission,  exists  just  as  much  where  the  message  is  not  understood  by 
the  company,  as  where  it  is  understood  by  them.  And  in  case  of  failure 
to  so  transmit  and  deliver,  the  breach  is  as  complete  in  the  one  case  as  in 
the  other ;  and  thf  company  must,  we  think,  be  considered  as  holding 
itself  responsible  for  all  damages  that  may  be  the  direct  and  natural  result 
of  such  breach. 

[393] 


§  410  MEASURE    OF    DAMAGES.  [PART  II. 

where  the  message  is  unintelligible  to  the  company  ; 
which  is,  that  in  such  cases  the  message,  being  so  ob- 
scure as  to  be  inappreciable,  cannot  be  the  subject- 
matter  of  damages.  This  question  was  raised  in  the 
case  of  Bo  wen  &  McNamee  v.  The  Lake  Erie  Tele- 
graph Company,  in  the  Court  of  Common  Pleas  of 
Ohio.1 

This  was  an  action  by  the  receiver  of  the  message. 
It  was  as  follows :  — 

"  To  BOWEN  &  McNAMEE,  New  York. 

"  Send  one  handsome  eight-dollar  blue  and  orange,  and  twenty- 
four  red  and  green ;  three  twenty-fives,  Bay  State.  Fill  former 
orders  with  best  bigh  colors  you  can. 

(Signed,)  "  BIDWELL  &  Co., 

"  Adrian,  Michigan." 

§  410.  The  Court  held,  that  the  defendant  was 
bound  to  send  the  message  correctly,  and  if  they  failed 
in  this  duty,  whereby  damages  had  accrued  to  the 
plaintiffs,  they  were  liable ;  and  said  further,  "  If  the 
message  was  originally  so  obscure  as  to  be  inapprecia- 
ble, the  error  complained  of  could  not  have  increased 
its  obscurity,  and  the  plaintiff  could  not  recover ;  but 
if  it  was  sufficiently  plain  to  be  understood  by  Bowen 
&  McNamee,  the  plaintiffs  in  this  case,  the  mer- 
chants to  whom  it  was  addressed,  though  not  intelligi- 
ble to  others,  it  was  appreciable ;  and  if  changed  to 
the  injury  of  the  plaintiffs,  such  a  change  was  a 
proper  subject  of  damages." 

The  error  in  the  transmission  consisted  in  making 
the  message  read  one  hundred,  instead  of  one  hand- 
some. The  plaintiffs  shipped  one  hundred  "  eight- 

1  1  American  Law  Reg.  685. 
[394] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  412 

dollar  blue  and  orange  Bay  State"  shawls,  and  suf- 
fered damage  in  consequence,  by  reason  of  the  depre- 
ciation of  the  shawls  in  the  market  when  they  were 
sent  back  to  them  by  Bidwell  &  Co. 

The  damage  recovered  was  for  this  loss. 

§  411.  When  the  action  is  by  the  receiver  of  the 
message,  it  is  most  generally  in  tort.  IJere  the  dam- 
ages will  be  estimated  according  to  the  principles 
applicable  to  this  kind  of  action.  Such  was  the  case 
of  New  York  &  Washington  Printing  Teleg.  Com- 
pany v.  Dryburg,1  where  the  receiver  of  the  message, 
Dryburg,  was  allowed  to  recover  from  the  company  the 
entire  damages  he  had  sustained  by  reason  of  the 
erroneous  transmission  of  the  message.  "  Two  hand 
bouquets  "  in  the  message  was  changed  by  the  operator 
so  as  to  read  "  two  hundred  bouquets."  Dryburg,  in 
filling  this  supposed  order,  wasted  a  large  quantity  of 
flowers,  and  recovered  the  amount  of  his  loss  occa- 
sioned thereby. 

§  412.  Where  the  error  in  the  transmission  of  a 
message  which  contains  an  order  for  the  purchase  of 
an  article  is  such  as  to  direct  the  purchase  of  an 
entirely  different  article,  the  measure  of  damages  is 
the  difference  between  the  price  paid  for  the  article 
mentioned  in  the  correct  message,  if  purchased  as 
soon  as  the  error  has  been  discovered,  and  the  price 
at  which  it  could  have  been  purchased  when  the 
erroneous  despatch  was  received. 

If  the  article  ordered  in  the  erroneous  message  has 

1  35  Pa.  St.  R.  298 ;  De  Rutte  ».  The  New  York,  Albany,  &  Buf- 
falo Electro-Magnetic  Teleg.  Co.,  Court  of  Common  Pleas,  N.Y.  See 
1  Daly,  547. 

[395] 


§  412  MEASURE    OF    DAMAGES.  [PART  II. 

been  purchased,  the  telegraph  company  is  not  liable 
for  a  loss  upon  a  resale  of  such  article,  unless  they 
have  had  fair  notice  of  the  resale.1 

And,  as  stated  in  Washington  &  New  Orleans 
Telegraph  Company  v.  Hobson  &  Son,2  the.  plain- 

1  Rittenhouse  ».  Independent  Line  of  Telegraph,  1  Daly,  Common 
Pleas  (N.Y.)  R,  474.  The  Court  say,  "  The  plaintiffs'  claim  for  a  differ- 
ence of  $475  on  the  sale  of  the  five  hundred  shares  of  Michigan  Southern 
was  disallowed  on  the  ground  that  the  stock  was  in  legal  effect  purchased 
on  defendants'  account,  and  could  not  be  sold  without  some  notice  to  them. 
I  think  the  ruling  was  a  proper  one,  the  relations  of  the  parties  being 
considered.  If  the  plaintiffs  intended  to  disavow  the  purchase,  the  de- 
fendants should  have  been  notified  thereof,  and  in  that  way  enabled  to 
keep  the  stock  or  not,  as  they  might  deem  advisable." 

*  15  Grattan,  122.  This  is  an  interesting  case  on  the  subject  of  dam- 
ages. The  case  was  this  :  Hobson  &  Son,  at  Richmond,  delivered  a  mes- 
sage to  this  telegraph  company  for  transmission,  addressed  to  Robert  W. 
Smith  &  Co.,  at  Mobile,  directing  them  to  purchase  for  the  plaintiffs  five 
hundred  bales  of  cotton,  at  or  under  nine  cents.  In  the  course  of  its 
transmission  the  message  was  altered,  so  as  to  read  twenty-five  hundred 
bales,  and  delivered  to  Smith  &  Co.  as  an  order  for  the  purchase  of  twenty- 
five  hundred  bales.  This  message  was  delivered  for  transmission  on  the 
2d  of  March,  1854.  Owing  to  some  derangement  of  the  wires,  it  did  not 
reach  Mobile  until  the  9th  of  that  month.  Upon  the  reception  of  the 
message,  Smith  &  Co.  purchased  two  thousand  and  seventy-eight  bales 
before  they  were  informed  of  the  mistake. 

On  the  20th  of  the  month  the  president  of  the  company  proposed  to 
Smith  &  Co.  to  take  the  one  thousand  five  hundred  and  seventy-eight 
bales  (the  excess)  at  cost,  exclusive  of  the  commissions  of  two  and  one- 
half  per  cent  charged  by  Smith  &  Co.  for  the  purchase  of  the  cotton. 
This  proposition  Smith  &  Co.  declined  for  their  principals,  but  proposed 
to  lose  one-half  of  the  commissions,  which  was  declined  by  the  company. 

At  the  time  these  propositions  were  pending,  Smith  &  Co.  had  made  a 
contract  for  the  shipment  of  one  thousand  of  these  bales  to  Liverpool,  of 
which  all  but  two  hundred  and  sixteen  bales  were  on  board  the  ship  prior 
to  the  18th  of  the  month. 

On  the  21st  Smith  &  Co.  informed  the  company  that  they  had  re- 
ceived a  telegraphic  message  from  Hobson  &  Son,  stating  that  Hobson  & 
Son  would  take  the  one  thousand  bales  shipped  to  Liverpool,  provided 
the  company  would  take  the  one  thousand  and  seventy-eight  bales  at 
[396] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §   412 

tiffs  must  not  only  have  given  the  company  notice, 
but  must  offer  to  deliver  to  them  the  article  upon 

prime  cost,  with  Smith  &  Co.'s  charges.  The  company  declined  this 
proposition. 

The  one  thousand  and  seventy-eight  bales  were  sold  in  Mobile,  at  a 
loss  of  but  eighty-seven  dollars  and  seventy-two  cents ;  but  the  loss  on  the 
five  hundred  bales  shipped  to  Liverpool  (five  hundred  being  retained  to 
fill  the  order  that  Hobson  &  Son  had  really  given),  exceeded  seven  thou- 
sand dollars. 

It  was  admitted  by  plaintiffs  that  the  company  were  prepared  to  carry 
into  effect  their  proposition  to  take  the  cotton  if  it  had  been  accepted ;  it 
also  appeared  that  the  loss  on  the  cotton  shipped  to  Liverpool  was  occa- 
sioned by  a  decline  in  the  price. 

Daniel,  J.,  in  delivering  the  opinion  of  the  Court,  said,  "I  think  the 
Court  also  properly  refused  to  give  the  second  instruction  asked  by  the 
plaintiffs  in  error.  If  the  company,  by  reason  of  their  having  sent  to 
Messrs.  Smith  &  Co.,  the  factors  of  defendants  in  error,  a  message  to  pur- 
chase a  larger  quantity  of  cotton  than  the  quantity  mentioned  in  the  mes- 
sage which  the  company  were  authorized  to  transmit,  had  rendered  them- 
selves liable  to  relieve  the  defendants  in  error  of  any  excess  of  cotton 
purchased  by  their  factors,  in  pursuance  of  the  first-mentioned  message, 
no  reason  is  perceived  why  the  company  is  not  equally  bound  to  relieve 
them  of  all  loss  or  obligation  by  them  incurred  on  account  of  the  accus- 
tomed and  reasonable  commission  of  their  factors,  charged  for  effecting 
the  purchase.  And  upon  the  supposition,  therefore,  that  Smith  &  Co. 
would  have  been  bound  to  accept,  in  behalf  of  their  principals,  an  offer 
by  the  company,  or  an  agent  of  the  company,  to  pay  all  the  costs  and 
the  charges  of  the  purchase  of  such  excess,  including  the  commissions 
aforesaid,  on  receiving  such  excess,  or  else  release  the  company  from 
any  responsibility  the  said  company  were  under  to  the  defendants  in 
error  having  transmitted  a  wrong  message,  they  were  not  bound  to  ac- 
cept any  offer  of  the  kind  which  did  not  include  the  commissions  afore- 
said. 

"  In  respect  to  the  rulings  of  the  Circuit  Court,  in  refusing  to  give  the 
third  instruction  asked  by  the  plaintiffs  in  error,  and  in  giving  the  instruc- 
tion which  it  did  give,  it  was,  I  think,  the  duty  of  the  defendants  in  error, 
as  soon  as  they  were  apprised  of  the  mistake  or  alteration  in  their  mes- 
sage, and  of  the  purchase  by  their  factors  of  two  thousand  and  seventy- 
eight  bales  of  cotton,  if  they  intended  to  hold  the  company  responsible 
for  the  excess  of  the  cotton  over  the  five  hundred  bales,  to  have  notified 
the  company  of  such  intention  ;  to  have  made  a  tender  of  such  excess  to 
the  company,  on  the  condition  of  its  paying  the  price  and  all  the  charges 

[397] 


§  412  MEASURE    OF    DAMAGES.  [PART  II. 

their  paying  the  plaintiffs  the  amount  of  loss  sustained 
by  reason  of  the  purchase ;  and,  upon  the  failure  of 

incident  to  the  purchase,  and  to  have  also  further  notified  the  company, 
that,  in  case  of  its  refusal  to  accept  such  tender  and  comply  with  its  con- 
ditions, they  would  proceed  to  sell  such  excess  at  Mobile,  and,  after  credit- 
ing the  company  with  the  net  proceeds,  would  look  to  it  for  the  'difference 
between  the  amount  of  such  proceeds  and  the  costs  of  the  excess,  including 
all  proper  charges ;  and,  on  the  failure  of  the  company,  after  notice,  to 
accede  to  their  offer,  they  ought  to  have  proceeded  to  act  accordingly. 

"  I  do  not  think  that  the  duty  of  the  defendants  in  error,  upon  such 
failure  of  the  company,  in  respect  to  the  disposition  of  the  five  hundred 
bales  of  the  excess,  —  two  hundred  and  eighty-four  bales  of  which  the  testi- 
mony tends  to  show  were  on  shipboard,  and  two  hundred  and  sixteen 
under  a  contract  of  affreightment,  —  varied  substantially  from  their  duty 
in  this  regard  respecting  the  one  thousand  and  seventy-eight  bales  which 
they  proceeded  to  sell  at  Mobile.  The  principles  and  rules  regulating 
this  subject  required,  as  I  conceive,  a  sale  of  said  five  hundred  bales  also, 
at  the  nearest  market  (Mobile),  to  be  taken  by  the  purchaser  or  purchasers 
as  it  stood  ;  namely,  two  hundred  and  eighty-four  bales  on  shipboard,  and 
two  hundred  and  sixteen  bales  as  under  contract  of  affreightment. 

"  The  defendants  in  error  had  no  right  to  subject  the  company  to  the 
hazards  attendant  upon  sending  the  cotton  to  a  foreign  market  The  loss 
(if  any)  which  they  had  incurred  on  the  said  five  hundred  bales  at  the 
time  of  the  refusal  of  the  company  to  relieve  them  of  the  excess  of  the 
cotton  purchased,  was  the  difference  between  the  cost,  including  all  proper 
charges,  and  its  then  present  value. 

"Notwithstanding  the  refusal  of  the  company  to  relieve  them  of  the 
excess,  or  to  have  any  thing  to  do  with  it,  they  had  no  right  to  subject  the 
company  to  the  hazards  of  any  greater  loss.  These  views  are,  I  think, 
fully  sustained  by  the  principles  to  be  deduced  from  the  cases  of  Sands  & 
Crump  v.  Taylor  &  Lovett,  5  John.  395  ;  Cornwal  v.  Wilson,  1  Vesey, 
Sen.  509;  Kemp  v.  Pryor,  7  Ves.  237;  Chapman  v.  Morton,  11  Mees.  & 
Wels.  533 ;  and  the  doctrines  on  the  subject  stated  in  Paley  on  Agency  ? 
c.  1,  sec.  7.  The  only  doubt  on  the  subject  arising  from  the  consideration 
of  these  authorities  is,  whether  the  defendants  in  error,  notwithstanding 
their  notice  to  the  company  of  their  purpose  to  send  on  the  five  hundred 
bales,  and  hold  it  responsible  for  the  loss  that  might  arise,  and  the  com- 
pany's refusal  to  take  it  off  their  hands,  have  not,  by  sending  the  cotton  to 
Liverpool,  instead  of  selling  it  at  Mobile,  lost  all  right  to  recover  from  the 
company  for  loss  which  might  have  been  sustained  on  the  said  five  hundred 
bales,  in  case  it  had  been  sold  in  Mobile.  I  do  not  think,  however,  if  the 
defendants  in  error  sent  on  the  cotton  with  the  intention  not  of  taking  to 
themselves  the  profits  which  might  arise  from  a  sale  of  the  said  five  hundred 
[398] 


CHAP.  VIII.]  MEASURE    OF.  DAMAGES.  §  412 

the  company  to  accept  the  offer,  the  plaintiffs  may 
proceed  to  sell,  and  hold  the  company  liable  for  the 

bales  in  Liverpool,  but  of  indemnifying  themselves  out  of  the  proceeds  of 
the  sale  to  the  extent  of  the  costs  of,  and  obligations  incurred  by,  them  by 
the  purchase,  they  thereby,  in  the  event  of  a  still  greater  loss  growing  out 
of  sending  the  cotton  to  Liverpool,  lost  any  right  they  may  have  had  to  re- 
cover of  the  company  for  the  loss  that  would  have  been  sustained,  had  the 
cotton  been  sold  at  Mobile,  on  the  refusal  of  the  company  to  relieve  them 
of  the  excess. 

"  On  the  other  hand,  if  the  defendants  in  error  sent  the  five  hundred 
bales  aforesaid  to  Liverpool,  for  the  purpose  of  speculation,  with  the  in- 
tention of  taking  to  themselves  the  profit,  in  the  event  of  a  profit,  and,  in 
the  event  of  a  loss,  of  visiting  the  loss  on  the  company,  the  case  in  respect 
to  said  five  hundred  bales  would,  I  think,  be  different.  They  could  not 
claim  all  the  benefits  of  a  complete  ownership  of  the  property,  and,  in  case 
of  a  loss,  demand  of  the  company  to  make  good  the  loss.  Parties  thus 
situated,  if  they  do  not  abandon  the  property,  cannot,  in  case  they  mean 
to  sue  for  damages,  go  further  in  dealing  with  the  property  retained  by 
them,  than  to  look  to  it  in  the  nature  of  a  pledge,  which  may  be  sold  for 
their  indemnity.  And  it  seems  to  me,  therefore,  that  the  purposes  and 
objects  of  the  defendants  in  error,  in  forwarding  the  five  hundred  bales  to 
Liverpool,  were  a  matter  proper  to  be  submitted  to  the  jury  for  their  con- 
sideration, in  passing  upon  the  damages  in  respect  of  the  five  hundred 
bales.  Whilst,  therefore,  I  think  that  the  Circuit  Court  did  right  in  refus- 
ing to  give  the  third  instruction  prayed  for  by  the  company,  as  asked,  I 
think  it  ought,  in  lieu  of  said  instruction,  to  have  modified  the  instructions 
which  it  did  give,  in  accordance  with  the  foregoing  views." 

There  is  a  case  pending  in  the  Supreme  Court  of  New  York,  which 
presents  some  of  the  questions  considered  in  the  above  case.  It  is  the  case 
of  Smith  &  Randolph  v.  The  Independent  Line  of  Telegraph.  The  mes- 
sage delivered  for  transmission  was  as  follows :  — 

"  Philadelphia,  March  15,  1864. 
"  To  DREXEL,  WINTHROP,  &  Co. 

"  If  the  gold  bill  is  vetoed,  buy  immediately  one  hundred  thousand. 

"  SMITH  &  RANDOLPH." 

The  message  actually  transmitted  and  delivered  was,  — 

"  Philadelphia,  March  15,  1864. 
"  To  DREXEL,  WINTHROP,  &  Co. 

"  Gold  bill  is  vetoed ;  buy  immediately  one  hundred  thousand. 

"  SMITH  &  RANDOLPH." 

The  complaint  stated  that  Drexel,  Winthrop,  &  Co.,  immediately  upon 
receipt  of  this  message,  purchased  one  hundred  thousand  dollars  of  gold 

[399] 


§  413  MEASURE    OF    DAMAGES.  [PART  II. 

difference  between  the  price  at  which  the  article  was 
purchased  and  the  price  at  which  it  sold,  including 
all  costs  and  charges  attending  the  purchase,  custody, 
and  sale  of  the  article. 

§  413.  In  all  cases  where  the  right  of  action  is 
based  upon  the  negligence  of  the  telegraph  company, 
it  is  important  to  consider  whether  there  has  been 
any  co-operating  negligence  on  the  part  of  the  plain- 
coin  for  one  hundred  and  sixty-two  thousand  two  hundred  and  twenty-five 
dollars,  and  that  their  commissions  for  purchasing  were  one  hundred  and 
twenty-five  dollars ;  and  notified  the  plaintiffs  thereof  by  telegraph.  The 
plaintiffs,  upon  the  receipt  of  this  message,  discovering  the  error  commit- 
ted by  the  company,  sent  the  following  despatch  immediately :  — 

"  Philadelphia,  March  15,  1864. 

"  Don't  buy  any  more.  You  had  better  sell  the  hundred  thousand  out 
at  once.  The  company  has  made  the  mistake.  See  the  manager. 

"  SMITH  &  RANDOLPH." 

Upon  the  receipt  of  this  message,  Drexel,  Winthrop,  &  Co.  at  once  sold 
the  gold  for  one  hundred  and  sixty  thousand  five  hundred  and  sixty-two 
dollars,  exclusive  of  commissions  for  making  the  sale. 

The  case  was  tried  before  the  court  without  a  jury,  and  the  finding 
was  in  accordance  with  this  statemant.  It  was  found  that  the  gold  was 
bought  at  the  market  price,  and  sold  at  the  highest  price  that  could  be 
obtained. 

The  Court  decided  that  Drexel,  Winthrop,  &  Co.,  who  were  brokers, 
were  entitled  to  the  commissions,  which  sum,  with  the  difference  in 
interest,  on  amount  of  sales,  should  be  deducted  from  the  gross  proceeds  of 
the  sale ;  and  that  the  plaintiffs,  by  reason  of  the  neglectful  and  careless 
acts  of  the  defendants,  sustained  damage  to  the  amount  of  two  thousand 
four  hundred  and  eighty-eight  dollars ;  and  gave  judgment  accordingly. 
The  appeal  was  taken  to  the  General  Term,  where  the  case  is  pending. 

One  of  the  questions  presented  in  defence  was,  that  if  the  gold  was  in 
fact  purchased  in  reliance  upon  the  erroneous  message,  and  was  in  the 
plaintiffs'  hands  when  the  error  was  discovered,  it  was  the  duty  of  the  plain- 
tiffs, before  selling,  to  inform  the  defendants  of  the  error  and  the  purchase, 
and  give  the  defendants  an  opportunity  to  take  the  gold  ;  and  that  in  sell- 
ing the  gold  without  such  notice,  they  deprived  the  defendants  of  the  right 
to  assume  the  purchase,  and  indemnify  the  plaintiffs,  and  thereby  ratified 
the  erroneous  message,  and  lost  their  right  of  action  against  the  defendants. 
[400] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  414 

tiff,  as,  in  such  case,  no  recovery  can  be  had.  If 
it  be  shown  that  the  injury  complained  of  so  far 
arose  from  the  negligence  of  the  plaintiff  himself,  as 
that,  by  the  exercise  of  ordinary  care  and  caution,  it 
could  have  been  avoided,  this  will  be  a  good  defence. 

But  it  is  essential  to  the  operation  of  this  principle 
that  the  conduct  of  the  plaintiff  substantially  con- 
tributed to  the  injury  complained  of.1 

If  his  conduct  did,  however,  augment  the  injury, 
then  the  law  is  inadequate  to  apportion  the  wrong, 
and  there  can  be  no  recovery.2 

§  414.  This  principle  was  urged  in  defence  in  the 
case  of  De  Rutte  v.  New  York,  Albany,  &  Buffalo 
Telegraph  Company ;  which  was  an  action  against 
the  telegraph  company  for  negligence,  there  being  a 
mistake  in  the  transmission  of  the  message. 

The  message  delivered  for  transmission  was, — 

"  Buy  for  Callarden  &  Bourdette,  bankers,  a  ship-load  of  five  to 
six  hundred  tons  white  wheat,  first  quality ;  extreme  limit  twenty- 
two  francs  the  hectolitre,  landed  at  Bordeaux ;  same  conditions 
as  the  Monod  contract.  TH.  DE  ROTTE." 

When  the  message  was  delivered  to  the  person  to 
whom  it  was  addressed,  Th.  De  Rutte  was  changed 
to  Thos.  De  Rutte  ;  Monod  contract  to  monied  con- 
tract; and  hectolitre  to  pretortttiere,  and  twenty-two 
francs  to  twenty-Jive  francs.  The  plaintiff  (who  was 
the  receiver  of  the  message),  however,  was  not  misled 
by  any  of  these  mistakes  except  the  last.  The  words 
twenty-Jive  francs  he  assumed  to  be  correct ;  but 
before  acting  upon  it  he  tried  to  get  a  copy  of  it  at 

1  Sills  v.  Brown,  9  Carr.  &  Payne,  601. 

2  Sedgwick  on  Damages,  pp.  495,  496. 

26  [401] 


§  414  MEASURE    OF    DAMAGES.  [PART   II. 

the  delivery  office,  but  was  informed  that  it  could 
not  be  furnished  him. 

It  was  insisted  for  the  company,  that  the  plaintiff 
was  himself  at  fault  in  not  having  the  message  re- 
peated.     But   the    Court    say,  "  The    change    from 
Th.  to  Thos.  was  a  very  natural   one ;   the  mistake 
in  the  French  word  was  one  that  might  ordinarily 
occur,  and  the  transformation  of  Monod  (to  the  oper- 
ator an  unmeaning  word)  into  monied  was  one   of 
those  slips  or  mistakes  which  might  readily  have  been 
made.      That  they  were  so  is  apparent  in  the  fact 
that  he  at  once  discovered  them  ;  and  I  think  it  does 
not  follow  because  he  discovered  mistakes  like  these, 
that  he  was  bound  to  regard  the  whole  message  as 
unreliable,  and  have  it  repeated  at  an  expense  of 
some  fifty  dollars.     The  words   twenty-five  were  in- 
telligible and  plain.     They  expressed  the  very  price 
at  which  wheat  was  then  ranging  in  San  Francisco, 
and  it  was  very  natural  for  him  to  suppose  that  they 
had  been  transmitted  correctly.     To  hold  that  he  was 
guilty   of  negligence  because   he   assumed  that  the 
message  was  correct  in  this  particular,  would  be  to 
declare  that  no  man  must  act  upon  one  in  which  he 
discovers  a  few  trivial  mistakes,  but  which  is  otherwise 
perfectly  intelligible,  except  at  his  peril.     I  do  not 
profess  to  have  much  information  upon  the  subject, 
but  I  apprehend  that  it  is  a  matter  of  common  and 
every-day  experience  for  messages  to  be  received  with 
words  misspelt  or  otherwise  altered,  without  affecting 
their  general  sense,  but  with  which  they  are  per- 
fectly intelligible ;   which  the  party  receiving  would 
have  to  disregard,  or  get  repeated  to  be  made  secure 

[402] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  416 

in  acting  upon  them,  if  the  courts  were  to  recognize 
such  a  rule  as  the  defendants  insist  upon." 

§  415.  But  it  may  require  further  adjudication  to 
settle  this  question  definitely.  On  the  one  hand 
it  may  be  asked,  what  right  have  the  company  to 
say  that  the  unreliability  of  their  medium  of  commu- 
nication shall  authorize  them  to  repel  every  person 
who  does  not  take  it  for  granted  that  every  message 
he  receives  over  their  lines  is  incorrect,  and  to  require 
him  to  pay  them  for  ascertaining  whether  it  is  or  is 
not  so  ? 

On  the  other  hand  it  may  be  said,  that  these  in- 
firmities in  telegraphing,  and  which  are  inherent  in 
the  very  nature  of  the  agencies  employed  to  trans- 
mit the  message,  are  well  known  to  all ;  and  that  the 
office  of  the  company  being  open  to  the  receiver  of 
the  message  to  have  it  repeated,  and,  if  it  be  so,  that 
by  having  it  repeated  the  mistake  or  other  error  may 
be  corrected,  with  but  little  loss  of  time,  and  the  very 
message  delivered  for  transmission  be  thereby  re- 
ceived,—  should  not  the  receiver  of  the  message,  who 
failed  to  avail  himself  of  these  facilities,  be  considered 
as  guilty  of  such  negligence  as  would  substantially 
contribute  to  the  injury? 

§  416.  After  all,  this  will  probably  be  held  to  be  a 
question  of  fact,  to  be  considered  by  the  jury  under 
all  the  circumstances  of  the  case,  and  to  be  very  much 
influenced  by  the  consideration,  as  to  how  far  the  fact 
of  having  the  message  repeated  would  enable  the 
plaintiff  to  know  whether  or  not  the  message  had 
been  correctly  transmitted.1 

1  In  the  late  case  of  Ellis  v.  The  American  Teleg.  Co.  13  Allen,  226, 

[403] 


MEASURE    OF    DAMAGES.  [PART   II. 

§  417.  The  cases  which  we  have  been  considering, 
in  which  the  measure  of  damages  was  discussed, 
have  been  cases  where  the  message  was  evidence  of 
a  contract  between  the  sender  and  receiver ;  or  where 
it  contained  some  order  or  instruction  from  the  prin- 
cipal to  the  agent  in  which  pecuniary  interests  were 
involved. 

But  there  are  many  instances  in  which  the  message 
is  merely  the  instrument  of  friendly  communication 
between  the  parties,  in  conveying  expressions  of  re- 
gard, or  imparting  important  information  of  a  private 
and  social  or  domestic  character.  In  such  cases,  if 
the  telegraph  company  fails  in  its  obligations  as  to  the 
prompt  and  correct  transmission  of  the  message,  the 
measure  of  damages  would  be  limited  to  the  cost  of 
the  transmission,  if  the  action  were  ex  contractu. 

§  418.  But  if  the  action  be  for  the  tort,  and  the  mes- 
sage in  question  was  one  of  importance  to  the  person 

it  is  said,  "  If  a  message  be  received  by  a  telegraph  company  for  transmis- 
sion from  one  point  to  another  in  this  Commonwealth,  written  upon  a 
blank  which  contains,  as  a  part  of  the  terms  and  conditions  upon  which  all 
messages  are  received  by  them  for  transmission,  a  statement  that  every  im- 
portant message  should  be  repeated,  by  being  sent  back  from  the  station 
at  which  it  is  to  be  received  to  the  station  from  which  it  is  originally  sent, 
for  which  repetition  half  the  usual  price  will  be  charged,  and  that  they 
will  not  be  responsible  for  any  error  in  the  transmission  of  any  unrepeated 
message  beyond  the  amount  paid  for  sending  the  same,  unless  a  special 
agreement  for  insuring  the  same  be  made  in  writing ;  and  if  an  error  oc- 
curs in  transmitting  the  same,  and  the  same  is  not  asked  to  be  repeated, 
and  the  message  so  erroneously  transmitted  is  written  upon  a  blank  con- 
taining the  same  terms  and  conditions  above  referred  to,  and  in  that  form 
is  delivered  to  the  person  to  whom  it  is  addressed,  —  such  person  so  receiv- 
ing the  same  cannot  maintain  an  action  against  the  company,  to  recover 
greater  damages  than  the  amount  paid  for  sending  the  same,  without  some 
further  proof  of  carelessness  or  negligence  on  their  part  than  that  result- 
ing simply  from  the  error." 
[404] 


CHAP.  VIII.]  MEASURE    OF    DAMAGES.  §  418 

to  whom  it  was  addressed,  and  in  the  information  it 
conveyed  affecting  the  feelings  of  the  parties,  —  as  is 
frequently  the  case,  imparting  joy  or  grief,  or  causing 
hope  or  disappointments,  —  in  all  such  cases,  if  there 
was  such  gross  negligence  on.  the  part  of  the  agents 
of  the  company  as  to  indicate  a  want  of  good  faith, 
or  wantonness  or  reckless  indifference  or  malicious 
purpose,  in  connection  with  its  transmission  and  de- 
livery, then  we  should  say,  that  the  damages  the 
party  suing  the  company  would  be  entitled  to  recover 
would  be  in  their  nature  vindictive  or  exemplary,  and 
largely  in  the  discretion  of  the  jury. 

In  such  cases,  the  damages  are  given  more  to 
punish  the  offender  than  to  recompense  the  party 
injured. 

[405] 


§  421  PENALTIES    AND    INDICTMENT  [PART  II. 


CHAPTER  IX. 

PENALTIES    AND     INDICTMENT    BY    STATUTE     IN     RELATION 
TO    MESSAGES. 

§  419.  BY  the  statutes  of  several  of  the  American 
States,  penalties  are  imposed  upon  telegraph  companies 
for  failure  in  the  discharge  of  many  of  the  duties 
resting  upon  them  in  respect  to  the  transmission  and 
delivery  of  messages ;  as,  for  example,  in  respect  to 
failure  to  transmit  the  message  with  impartiality  and 
good  faith ;  failure  to  send  the  message  in  the  order  of 
time  in  which  it  is  received  for  transmission ;  dis- 
closure of  the  contents  of  messages  by  the  agents  and 
servants  of  the  company  ;  failure  to  transmit  and  de- 
liver the  message,  etc. 

§  420.  In  other  States  many  of  these  violations  of 
statutory  duty  are  made  criminal,  and  punished  with 
fine  and  imprisonment.1 

§  421.  The  statutes  which  impose  penalties  are 
substantially  as  follows :  It  shall  be  the  duty  of  the 
individual  or  association  owning  the  telegraph  line,  to 
receive  messages  from  and  for  other  telegraph  lines 
and  associations  and  individuals,  and,  on  the  payment 
of  their  customary  charges  as  established  by  their 
rules  and  regulations,  to  transmit  the  same  with  im- 
partiality and  good  faith,  under  a  penalty  for  failure 

1  See  infra,  485-446. 
[406] 


CHAP.  IX.]  IN    RELATION    TO    MESSAGES.  §  424 

in  the  discharge  of  this  duty,  to  be  recovered  with 
costs  in  the  name  and  for  the  benefit  of  the  person 
sending,  or  proposing  to  send,  the  message. 

There  is  a  similar  provision  imposing  a  penalty  for 
failure  to  transmit  messages  in  the  order  in  which  they 
are  received,  the  penalty  to  be  recovered  by  the  per- 
son whose  message  is  postponed  out  of  its  order ;  but 
with  the  proviso  that  an  arrangement  may  be  made 
with  the  proprietors  and  publishers  of  newspapers  for 
the  transmission,  for  the  purpose  of  publication,  of 
intelligence  of  a  general  and  public  interest,  out  of 
its  order. 

§  422.  Such  are  the  provisions  in  Maryland,  Vir- 
ginia, Ohio,  Missouri,  Indiana,  Michigan,  Connecticut 
and  California.1 

§  423.  In  Pennsylvania,  a  penalty  is  imposed  for 
sending  messages  out  of  their  order,  but  not  for  want 
of  impartiality  and  good  faith.2 

§  424.  In  the  State  of  Missouri  a  penalty  is  im- 
posed for  disclosing  the  contents  of  messages  transmit- 
ted by  the  company.  It  provides  that  the  company 
or  association  shall  be  liable  in  a  penalty  of  fifty  dol- 

1  Laws  of  Maryland,  Code  of  1 860,  art.  26,  §§  1 1 7,  1 1 8.     Appendix  R. 
Statutes  of  Virginia,  May  26,  1852,  General  Acts,  c.  149,  §  10.   Act  of 

February  15,  1866,  §  48.     Appendix  KK. 

Statutes  of  Ohio,  Act  of  March  31,  1865,  §§  8,  9.     Appendix  CO. 

Revised  Statutes  of  Missouri,  c.  156,  §  5.     Appendix  W. 

Statutes  of  Indiana,  Revision  of  1860,  c.  179,  §  1.     Appendix  L. 

Compiled  Laws  of  Michigan,  Compilation  of  1857,  c.  70,  §§  2062,  2063. 
Appendix  T. 

General  Laws  of  Connecticut,  Revision  of  1866,  tit.  7,  c.  7,  §§  572,  573. 
Appendix  G. 

California  statute  of  May  14,  1861,  §  6  ;  Act  of  April  4,  1861,  §  5. 
Appendix  F. 

2  Purdon's  Digest,  1861,  title  Telegraphs,  §  1.    Appendix  EE. 

[407] 


§  427  PENALTIES    AND    INDICTMENT  [PART  II. 

lars  "  for  the  disclosure  of  any  of  the  contents  of  any 
private  despatch  to  any  person  other  than  to  him  to 
whom  it  is  addressed,  or  his  agent." *  In  most  of  the 
other  States  that  have  provisions  on  this  subject,  the 
offence  is  made  criminal. 

§  425.  By  the  statutes  of  Ohio  and  Virginia,  a 
penalty  is  imposed  for  failure  to  deliver  messages.2 

§  426.  In  Ohio  it  is  provided  that  when  the  sender 
desires  to  have  it  forwarded  over  the  lines  of  other 
telegraph  companies  whose  termini  are  respectively 
within  the  limits  of  the  usual  delivery  of  such  com- 
panies to  the  place  of  final  destination,  and  shall  ten- 
der to  the  first  company  the  charges  for  transmission 
to  the  place  of  destination,  the  company  shall  receive 
the  message,  and  deliver  to  connecting  company,  after 
transmitting  over  its  own  line,  and  shall  pay  the 
necessary  charges  to  the  succeeding  company ;  and  it 
shall  be  the  duty  of  this  connecting  company  to  receive 
and  transmit  the  same,  as  if  they  had  been  applied  to 
by  the  sender  in  the  first  instance ;  and  a  penalty  is 
imposed  for  failure,  against  either  company  who 
violates  the  requirement. 

§  427.  There  is  another  important  provision  in  this 
statute,  to  the  effect  that  when  application  is  made  to 
the  telegraph  company  to  transmit  the  message,  it 
shall  be  the  duty  of  the  officer  or  agent  appointed  by 
the  company  to  receive  despatches  "  plainly  to  inform 
the  applicant,  and,  if  required  by  him,  to  write*  upon 
the  despatch,  that  the  line  is  not  in  working  order,  or 

1  Revised  Statutes  of  Missouri,  c.  156,  §  6.     Appendix  W. 
*  Statutes  of  Ohio,  March,  31,  1865,  §  9.     Appendix  CC. 
Virginia  Act  of  Feb.  21,  1866,  §  2.     Appendix  KK. 
[408] 


CHAP.   IX.]  IN    RELATION   TO    MESSAGES.  §  429 

that  the  despatches  already  on  hand  for  transmission 
will  occupy  the  time  so  that  the  despatch  offered  can- 
not be  transmitted  within  the  time  required,  if  the 
facts  be  so ; "  and  for  failure  to  do  so,  or  for  giving 
false  information  in  regard  thereto,  the  officer  or  agent, 
and  also  the  company,  shall  incur  the  penalty.1 

§  428.  In  Maine,  a  penalty  is  imposed  upon  the 
operator  or  agent  who  designedly  falsifies  a  despatch 
for  any  purpose  ;  and  in  case  of  his  inability  to  pay  the 
judgment  recovered  upon  the  penalty,  the  company 
shall  "  forfeit  the  same  sum."  2 

§  429.  All  messages  were  formerly  required  to  be 
stamped,  by  Act  of  the  Congress  of  the  United  States  ; 
and  where  this  was  not  done,  the  company  incurred  a 
penalty.  It  was  provided  by  this  act,  that  "  no  tele- 
graph company,  or  its  agent  or  employe,  shall  receive 
from  any  person,  or  transmit  to  any  person,  any  despatch 
or  message,  without  an  adhesive  stamp  denoting  the 
duty  imposed  by  this  act  being  affixed  to  a  copy 
thereof,  or  having  the  same  stamped  thereupon; 
and  in  default  thereof  shall  incur  a  penalty  of  ten 
dollars  ;  provided,  that  only  one  stamp  shall  be 
required,  whether  sent  through  one  or  more  com- 
panies.3 

1  Act  of  March  31.  1865,  §  8.     Appendix  D. 

2  Kevised  Statutes  of  Maine,  1857,  c.  53,  §  2.     Appendix  Q. 

1  Thirty-Seventh  Congress,  Sess.  2,  (1862),  c.  119,  §  104,  Schedule 
B.,  Stamp  Duties.  Any  despatch  or  message,  the  charge  for  which  for 
the  first  ten  words  does  not  exceed  twenty  cents,  one  cent.  When  it 
exceeds  twenty  cents,  three  cents.  Appendix  D. 

We  extract  the  following  from  "  Boutwell's  Direct  and  Excise  Tax 
System  of  the  United  States,"  1863  :  — 

"  No.  30.  Messages  transmitted  by  telegraph  and  railroad  companies, 

[409] 


§  430  PENALTIES    AND    INDICTMENT  [PART   II. 

The  mode  of  taxation  has  been  changed  under  the 
Internal  Revenue  laws. 

§  430.  By  the  Canada  statute,1  a  penalty  is  imposed 
upon  the  individual  or  company  owning  any  telegraph 
line,  for  failure  to  transmit  all  messages  in  the  order  in 
which  they  are  received. 

There  is  no  provision  in  this  statute  making  an  ex- 
over  their  own  wires,  on  their  own  business,  for  which  they  receive  no 
pay,  are  not  taxable. 

"  Telegraph  despatches  must  be  stamped,  and  the  stamp  cancelled,  be- 
fore the  same  are  received  for  transmission. 

"  No.  44.  Telegraphic  despatches  or  messages  sent  from  an  office  with- 
out the  United  States,  to  an  office  within  the  United  States,  are  not  subject 
to  stamp  tax;  provided  the  message  be  transmitted  direct  to  its  final 
destination. 

"If  received  at  an  office  within  the  United  States,  and  repeated  to 
another  office  within  or  without  the  United  States,  the  stamp  must  be 
affixed  and  cancelled  when  the  message  is  repeated. 

"  It  is  illegal  for  telegraph  operators  to  receive  unstamped  messages  from 
the  writers.  It  is  the  duty  of  the  writer  to  affix  and  cancel  the  stamp ; 
and  the  company  or  its  agents,  receiving  or  transmitting  an  unstamped 
message,  is  liable  to  a  penalty  often  dollars." 

Rulings,  No.  269. 

"  Telegraph  messages  forwarded  free  of  charge  by  railroad  or  express 
companies,  or  which  are  paid  for  in  kind,  must  have  stamps  attached  to 
them. 

"  Messages  forwarded  in  the  same  manner  for  corporations  or  individuals, 
treated  as  free  messages  in  their  transmission,  but  paid  for  quarterly  or 
yearly,  must  have  stamps  attached. 

"  Messages  of  a  railroad  company  require  to  be  stamped  when  going  over 
a  line  which  they  do  not  own,  and  work  exclusively  for  railroad  purposes, 
although  the  stock  of  the  telegraph  line  over  which  their  messages  pass, 
may  be  partly  or  chiefly  owned  by  the  railroad  company." 

Only  such  messages  as  are  covered  by  the  following  are  entitled  to  ex- 
emption as  "  free  messages  : "  — 

"  Messages  transmitted  by  telegraph  and  railroad  companies  over  their 
own  wires,  on  their  own  business,  for  which  they  receive  no  pay,  do  not 
require  stamps.  A  receipt  for  the  message  is  not  subject  to  the  stamp 
duty."  Modified  so  that  stamps  are  not  required. 

1  Consolidated  Statutes  of  Canada,  c.  67,  §  14.    Appendix  B. 
[410] 


CHAP.  IX.]  IN    RELATION    TO    MESSAGES.  §  432 

ception  in  favor  of  the  transmission  of  intelligence 
of  a  public  and  general  character,  with  a  view  to  its 
publication,  as  in  the  statutes  of  the  different  States 
of  the  Union,  to  which  we  have  adverted. 

§  431.  Where  a  specific  penalty  is  given  to  the 
party  by  statute,  no  more  than  the  penalty  can  be 
recovered,1  unless  the  statute  authorizes  the  recovery 
of  damages  for  the  act  in  addition. 

§  432.  All  penal  statutes  must  be  strictly  construed ; 
and  where  the  statute  authorizes  the  recovery  "in 
the  name  and  for  the  benefit  of  the  person  or  persons 
sending  or  desiring  to  send  such  despatches,"  the 
person  entitled  to  recover  the  penalty  is  the  party 
who  contracts,  or  offers  to  contract,  for  the  transmis- 
sion of  the  message.  He  may  contract  by  his  agent 
or  servant ;  but  when  the  contract  is  made  by  a  party 
as  agent  of  another,  in  order  to  enable  the  principal 
to  recover,  the  fact  of  agency  must  be  shown. 

This  question  was  presented  upon  the  California 
statute,  which  imposes  a  penalty  upon  the  company  for 
failure  to  transmit  messages  with  impartiality  and  good 
faith,  in  the  case  of  Thurn  v.  The  Alta  California 
Telegraph  Company.2 

1  Couch  v.  Steel,  3  Ellis  &  Blackburn,  412. 

2  15  California  R.  472. 

The  section  upon  which  the  action  was  predicated  is  as  follows :  — 
"It  shall  be  the  duty  of  the  owner,  or  the  association  owning  any  tele- 
graph line,  doing  business  within  the  State,  to  receive  despatches  from  and 
for  other  telegraph  lines  and  associations,  and  from  and  for  every  indi- 
vidual ;  and  on  payment  of  their  usual  charges  for  individuals  for  trans- 
mitting despatches,  as  established  by  the  rules  and  regulations  of  such 
telegraph  lines,  to  transmit  the  same  with  impartiality  and  good  faith ;  and 
shall  not  disclose  any  communication  transmitted  on  said  line  or  lines, 
directed  to  a  third  person,  in  a  penalty  of  five  hundred  dollars  for  every 
neglect  or  refusal  so  to  do,  or  confidential  disclosure ;  to  be  recovered,  with 

[411] 


§  432  PENALTIES    AND    INDICTMENT  [PART  II. 

From  the  case  it  appeared  that  the  plaintiff  went 
into  the  office  of  the  California  State  Telegraph 

the  costs  of  suit,  in  the  name  and  for  the  benefit  of  the  person  or  persons 
sending,  or  desiring  to  send,  such  despatches." 

The  proof  was  as  stated  in  the  text. 

Baldwin,  J.,  who  delivered  the  opinion  of  the  Court,  said,  "The  objec- 
tion is  made  that  the  plaintiff  had  no  authority  to  bring  this  suit.  .  .  . 
It  is  evident  that  the  person  intended  here  is  the  party  who  contracts,  or 
offers  to  contract,  for  the  transmission  of  the  despatch.  He  may,  proba- 
bly, do  this  by  his  agent  or  servant,  but  when  the  contract  is  made  by  a 
party  as  agent  of  another,  in  order  to  give  a  right  of  suit  to  the  principal, 
the  fact  of  agency  must  be  shown.  .  .  . 

"  We  see  nothing  here  to  justify  the  inference  that  the  State  Tele- 
graph Company  were  the  agents  of  the  plaintiff  for  the  transmission  of  the 
message.  That  company  seems  to  have  been  engaged  in  the  same  general 
business.  That  they  were  not  able  to  send  the  message  by  a  line  of  their 
own,  makes  little  or  nothing  for  the  argument.  It  is  not  shown  that  this 
fact  was  known  to  the  plaintiff,  and  if  it  were,  it  does  not  follow  that  the 
plaintiff  may  not  have  been  willing  to  make  this  contract  with  the  State 
Telegraph  Company,  trusting  to  its  responsibility,  and  that  it  would  make 
such  a  contract  or  take  such  steps  as  might  be  necessary  to  secure  the  ob- 
ject of  sending  the  message.  A  man  having  no  means  of  expressing  mat- 
ter may  contract  to  express  a  package,  and  may  receive  payment  for  it, 
and  expect  to  employ  regular  express  agents  to  do  the  business ;  but  this 
does  not  make  him  the  agent  of  his  customer  to  contract  with  the  express 
company.  He  may,  and  the  presumption  is  he  does,  contract  on  his  own 
account.  If  the  message  had  not  been  transmitted,  Thurn  might  have 
held  the  State  Telegraph  Company  responsible ;  but  it  does  not  follow 
that  he  could  have  changed  the  contract  into  an  agency  for  him,  and  sued 
the  defendant  for  failure  to  transmit  the  message. 

"  The  application  was  not  made  in  the  name  of  Thurn,  though  it  was 
his  message  that  was  to  be  sent ;  but  a  man  may  desire  to  send  a  message 
signed  in  the  name  of  another,  and  to  contract  on  his  own  account  for 
sending  it,  as  well  as  if  the  message  were  written  in  his  own  name,  and 
contracted  to  be  sent  for  his  own  benefit.  There  is  no  proof  that  the 
contract  was  made  in  the  name  of,  or  for  the  benefit  of,  or  as  agent 
for,  Thurn;  and  if  the  doctrine  of  ratification  applies  in  a  penal  pro- 
ceeding of  this  sort,  which  is  very  doubtful,  the  facts  do  not  authorize  its 
application. 

"  We  see  nothing  in  the  facts  which  make  out  more  than  a  contract 
by  the  State  Telegraph  Company  to  send  this  message,  or  have  it  sent,  for 
which  contract  it  charged  and  received  a  certain  compensation ;  and  to 
[412] 


CHAP.  IX.]  IN   RELATION    TO    MESSAGES.  §  434 

Company,  in  San  Francisco,  and  delivered  a  message 
to  be  transmitted  to  Jackson,  and  paid  for  transmit- 
ting it  to  that  place.  There  was  no  express  agree- 
ment that  the  California  State  Telegraph  Company 
should  forward  the  message  to  Sacramento,  its  ter- 
minal office,  and  employ  the  Alta  California  Tele- 
graph Company  to  transmit  it  from  there  to  Jack- 
son ;  but  something  was  said  at  the  time  about  its 
being  sent  by  that  line. 

The  Alta  California  Telegraph  Company  refused 
to  transmit  the  message  over  their  line,  when  the 
message  together  with  the  charges  were  tendered  by 
the  Calfornia  State  Telegraph  Company. 

Thurn  brought  the  action  to  recover  the  penalty 
of  five  hundred  dollars  given  by  the  statute. . 

§  433.  It  was  held,  that,  under  the  state  of  facts, 
Thurn  was  not  the  person  making,  or  offering  to  make, 
the  contract  within  the  meaning  of  the  act,  and  could 
not  recover ;  that  the  only  contract  shown  was  a  con- 
tract by  the  California  State  Telegraph  Company  to 
send  the  message  or  have  it  sent ;  and  a  contract  on 
its  part,  to  contract  on  its  own  account,  with  the 
Alta  Telegraph  Company  to  send  the  message. 

§  434.  In  a  suit  for  the  penalty,  the  burden  of 
proof  is  upon  the  company  to  show  that  the  failure 
to  transmit  the  message  in  the  regular  order  was  be- 
cause its  line  was  employed  in  the  transmission  of 

perform  this  contract,  an  offer  on  its  part  to  contract,  on  its  own  account, 
•with  the  Alta  Telegraph  Company,  to  send  this  message.  This  seems  to 
have  been  so  considered  by  the  Alta  Telegraph  Company's  agent  at  the 
time.  We  think,  under  this  state  of  facts,  the  plaintiff  here  is  not  the  per- 
son making,  or  offering  to  make,  the  contract  within  the  meaning  of  the 
act." 

[413] 


§  437  PENALTIES    AND    INDICTMENT  [PART   II. 

that  class  of  messages  to  which  the  statute  allows  a 
preference  to  be  given.1 

§  435.  Telegraph  companies,  and  their  agents  and 
employes,  are  held  responsible  criminally,  to  a 
very  large  extent,  by  the  statutes  of  the  different 
States  of  the  Union. 

§  436.  The  acts  which  are  made  crimes  by  statute 
are,  in  the  main,  disclosing  the  contents  of  messages ; 
sending  false  or  forged  messages ;  wilfully  altering 
messages  ;  appropriating  the  information  contained  in 
messages,  and  trading  or  speculating  upon  the  same  ; 
neglecting  to  transmit  and  deliver  messages ;  and 
refusing  to  transmit  and  deliver;  and  for  failing  to 
send  in  the  regular  order. 

§  437.  There  are  also,  in  some  of  the  States,  cer- 
tain acts  of  third  persons  unconnected  with  telegraph 
companies,  which  are  made  criminal  offences:  as  open- 
ing sealed  envelopes  containing  telegraphic  messages, 
for  the  purpose  of  learning  the  contents  of  the  mes- 
sages ;  fraudulently  personating  the  person  to  whom 
the  message  is  addressed,  and,  by  so  doing,  procuring 
the  delivery  of  the  message  to  himself,  with  intent  to 
use,  destroy,  or  detain-  the  same  ;  wilfully  and  fraud- 
ulently, reading,  or  attempting  to  read,  any  message, 
or  to  learn  the  contents  thereof,  whilst  the  same  is  on 
its  transit,  by  means  of  any  machine,  instrument,  or 
contrivance,  or  in  any  other  manner ;  or  wilfully  and 
clandestinely  learning,  or  attempting  to  learn,  the  con- 
tents of  messages  while  in  the  office  ;  and  for  attempt- 
ing to  communicate  information  so  obtained  to  others  ; 
for  inducing  operator  to  disclose  contents  of  messages 

1  Western  Union  Telegraph  Co.  v.  Ward,  23  Indiana  R.  377. 
[414] 


CHAP.  IX.]  IN   RELATION    TO    MESSAGES.  §  439 

by  payment  of,  or  promising  to  pay,  any  reward  or 
inducement. 

§  438.  We  will  now  refer  to  the  statutes  of  the 
different  States  upon  this  subject. 

The  wilful  disclosure  of  the  contents  of  messages 
by  the  operator  or  other  servant  of  the  company  is 
made  a  misdemeanor  punishable  with  fine  and  im- 
prisonment of  the  person  committing  the  offence,  in 
most  of  the  States  which  have  statutes  on  the  subject 
of  telegraphs. 

Such  is  the  law  in  Pennsylvania,  New  York,  Ohio, 
New  Jersey,  Maryland,  Virginia,  Michigan,  Iowa, 
Illinois,  Wisconsin,  Oregon,  California,  Minnesota, 
and  Nevada.1 

§  439.  By  the  statutes  of  Pennsylvania,  Iowa,  Illi- 

1  There  is  a  similar  provision  in  the  Canada  statute.  Consolidated 
Statutes,  c.  67,  §  16.  Appendix  B. 

Pardon's  Digest  of  Pennsylvania  Laws,  1861  (see  also  Digest  of 
1857),  title,  Crimes,  E,  §  80.  Appendix  EE. 

Revised  Statutes  of  New  York.  ed.  of  1859,  c.  18,  title  17,  §  13.  Ap- 
pendix AA. 

Ohio  Statute  of  March  31,  1865,  §  10.    Appendix  CC. 

Laws  of  New  Jersey,  Nixon's  Digest,  1861,  Telegraphs,  §  11.  Appen- 
dix Z. 

Public  General  Laws  of  Maryland,  Code  of  1860,  art.  26,  Corpora- 
tions, §  1*20.  Appendix  R. 

Virginia  General  Acts,  c.  149  (statute  of  May  26,  1852),  §  12.  Ap- 
pendix KK. 

Michigan  (Laws  of  1853,  p.  112,  c.  187,  §  1)  Compilation  of  1857, 
§  5912.  Appendix  T. 

Laws  of  Iowa,  Revision  of  1860,  c.  56,  §  1352.     Appendix  M. 

Illinois  Statutes,  Revision  of  1858  (Sess.  Laws  of  Feb.  9,  1849,  p.  188, 
§  11).  Appendix  K. 

Revised  Statutes  of  Wisconsin,  1858,  c.  76,  §  19.     Appendix  LL. 

Laws  of  Oregon,  Compilation  of  1866,  c.  54,  §  8.     Appendix  DD. 

California  Act  of  April  18,  1862,  §  1.     Appendix  F. 

General  Laws  of  Minnesota,  1860,  c.  12,  §  3.     Appendix  U. 

Laws  of  Nevada,  c.  23  (Act  of  Nov.  25,  1861),  §  1.     Appendix  X. 

[415] 


§  442  PENALTIES    AND    INDICTMENT  [PART   II. 

nois,  California,  and  Oregon,  it  is  made  a  misdemean- 
or punishable  with  fine  and  imprisonment,  in  any 
agent  or  operator  of  a  telegraph  company  to  know- 
ingly send  by  telegraph  any  false  or  forged  message, 
with  intent  to  deceive,  injure,  or  defraud  any  person 
or  corporation ;  and  if  any  other  person  shall  furnish 
to  such  agent  or  operator  to  be  so  sent,  such  a  mes- 
sage, and  with  such  intention,  such  person  shall  be 
guilty  of  a  misdemeanor  punishable  with  fine  and 
imprisonment.1 

§  440.  By  the  statutes  of  California  and  Nevada,  it 
is  made  a  misdemeanor,  punishable  with  fine  and 
imprisonment,  for  the  operator  or  agent  of  the  com- 
pany, or  any  other  person,  to  wilfully  change  a  mes- 
sage by  adding  to  or  omitting  from  the  same  any 
word,  so  as  to  materially  alter  the  sense,  to  the  injury 
of  the  person  sending  or  receiving  the  same.2 

§  441.  The  statute  of  Oregon  provides  that  if  the 
operator  or  other  agent  of  the  company  "  shall  de- 
signedly alter  or  falsify"  the  message,  "  for  any  purpose 
whatever,"  he  shall  be  liable  to  indictment,  etc.3 

§  442.  It  is  made  a  misdemeanor  by  the  statutes  of 


1  Purdon's  Digest,  Penn.  Laws,   1861,    Crimes,  E,  §  185.      Appen- 
dix EE. 

Laws  of  Iowa,  Revision  of  1860,  Telegraphs,  c.  56,  §  1352.     Appen- 
dix M. 

Public    Laws    of   Illinois,    Telegraph    Despatches    (Act    Feb.   21, 
1861),  §  1.     Appendix  K. 

California  Act,  April  18,  1862,  §  2.     Appendix  F. 

Laws  of  Oregon,  Compilation  of  1866,  c.  54,  §  9.     Appendix  DD. 

*  Statutes  of  California,  c.   262  (Act  of  April  18,  1862),  §  1.     Ap- 
pendix F. 

Laws  of  Nevada,  c.  23  (Act  of  Nov.  25,  1861),  §  1.     Appendix  X. 

8  Laws  of  Oregon,  Compilation  of  1866,  c.  54,  §  6.     Appendix  DD. 
[416] 


CHAP.  IX.]  IN    RELATION    TO   MESSAGES.  §  445 

California,  Oregon,  and  Nevada,  for  the  operator  or 
other  agent  of  the  company  to  use,  or  in  any  way 
appropriate,  any  information  derived  from  private 
messages,  or  to  trade  or  speculate  upon  any  such 
information,  or  in  any  other  manner  turn,  or  attempt 
to  turn,  the  same  to  his  own  profit  and  advantage.1 

§  443.  It  is  made  a  misdemeanor  by  the  statutes  of 
New  York,  Maryland,  Michigan,  California,  and  Ore- 
gon, for  the  operator  or  other  agent  of  the  telegraph 
company  to  wilfully  neglect  or  refuse  to  transmit  and 
deliver  the  message.2 

§  444.  For  unreasonable  refusal  or  wilful  neglect, 
upon  the  part  of  the  operator  or  other  agent,  to  send 
the  message  in  its  regular  order,  he  is  guilty  of  a  mis- 
demeanor and  subject  to  fine  and  imprisonment  by  the 
statutes  of  California,  Illinois,  Oregon,  and  Nevada.3 

§  445.  It  is  also  made  a  misdemeanor  in  California, 
Oregon,  and  Nevada,  for  any  person  unconnected  with 
the  telegraph  company  to  wilfully  and  unlawfully 
open  any  sealed  envelope  inclosing  a  message,  for 


1  Statutes  of  California,  c.  262  (Act  April  28,  1862),  §  3.     Appen- 
dix F. 

Laws  of  Oregon,  Compilation  of  1866,  c.  54,  §  10.     Appendix  DD. 
Laws  of  Nevada,  c.  23  (Act  Nov.  25,  1861),  §  3.     Appendix  X. 

2  Statutes  of  California,  c.  262  (April  18,  1862),  §4.     Appendix  F. 
Kevised  Statutes  of  New  York,  edition  of  1859,  c.  18,  title  17,  §  13. 

Appendix  AA. 

Maryland  Code  of  1860,  art.  26,  §  120.     Appendix  R. 

Compiled  Laws  of  Michigan,  Compilation  of  1857,  c.  70,  §  5915.     Ap- 
pendix T. 

Laws  of  Oregon,  Compilation  of  1866,  c.  54,  §  6.     Appendix  DD. 

3  Statutes  of  California,  c.  262  (April  18,  1862),  §  4.     Appendix  F. 
Laws  of  Oregon,  Compilation  of  1866,  c.  54,  §  11.     Appendix  DD. 
Laws  of  Nevada,  c.  23  (Act  Nov.  21,  1861),  §  4.     Appendix  X. 
Illinois  Session  Laws  (Feb.  9,  1849),  p.  188,  §  11.     Appendix  K. 

27  [417] 


§  446  PENALTIES    AND    INDICTMENT,   ETC.        [PART  II. 

the  purpose  of  learning  its  contents ;  or  to  fraudu- 
lently personate  the  individual  to  whom  the  message 
is  addressed,  with  intent  to  use,  destroy,  or  detain  the 
same  from  the  person  entitled  to  receive  it ;  and,  in 
addition  to  the  fine  and  imprisonment,  such  person  is 
liable  in  treble  damages  to  the  party  injured. 

§  446.  It  is  also  made  a  misdemeanor  by  these 
statutes,  for  a  person  unconnected  with  the  company 
to  wilfully  and  fraudulently  read  a  message  as  it  is 
passing  over  the  wires  ;  or  to  wilfully  or  fraudulently 
or  clandestinely  learn,  or  attempt  to  learn,  the  con- 
tents or  meaning  of  a  message  while  it  is  in  the  office 
of  the  company ;  or  by  the  payment  or  promise  of 
any  bribe,  inducement,  or  reward,  to  the  operator  or 
other  agent,  to  procure,  or  attempt  to  procure  the  dis- 
closure of  the  contents  of  any  private  message  ;  or  to 
use,  or  attempt  to  use  the  information  so  obtained.1 

1  Statutes  of  California  (April  18,  1862),  c.  266,  §§  5,  6,  7.  Ap- 
pendix F. 

Laws  of  Oregon,  Compilation  of  1866,  c.  54,  §§  12,  13,  14.  Appen- 
dix DD. 

Laws  of  Nevada,  c.  23  (Act  of  Nov.  25,  1861),  §§  5,  6,  7.  Ap- 
pendix X. 


[418] 


APPENDIX. 


APPENDIX. 


A. 


ENGLAND. 

ANNO  VICESIMO    SEXTO    &  VICESIMO    SEPTIMO   VICTOKL& 

BEGINS. 

CAP.   cxn. 

An  Act  to  regulate  the  Exercise  of  Powers  under  Special  Acts  for 
the  Construction  and  Maintenance  of  Telegraphs. 

[28th  July,  1863.] 

BE  it  enacted  by  the  Queen's  most  Excellent  Majesty,  by  and 
with  the  Advice  and  Consent  of  the  Lords  Spiritual  and 
Temporal,  and   Commons,  in  this  present  Parliament  assembled, 
and  by  the  Authority  of  the  same,  as  follows  : 

Preliminary. 

1.  This  Act  may  be  cited  as  The  Telegraph  Act,  1863. 

2.  This  Act  shall  apply  — 

(1.)  To  every  Company  to  be  hereafter  authorized  by  Special 
Act  of  Parliament  to  construct  and  maintain  Telegraphs  : 

(2.)  To  every  Company  so  authorized  before  the  passing  of  this 
Act  by  any  such  Special  Act,  notwithstanding  anything 
in  any  such  Special  Act  contained,  —  but  so  that,  except 
as  herein-after  expressly  provided,  nothing  in  this  Act 
shall  give  to  any  Owner,  Lessee,  or  Occupier  of  Land,  or 


422  APPENDIX. 

other  Person,  or  to  any  Body,  as  against  any  such  Com- 
pany as  last  aforesaid,  in  respect  of  anything  lawfully 
done  before  the  passing  of  this  Act  by  such  Company 
under  any  such  Special  Act,  any  further  or  other  Right, 
Power,  Jurisdiction,  Authority,  or  Remedy,  than  he  or 
they  would  have  had  if  this  Act  had  not  been  passed  : 
Provided  also,  that  nothing  in  this  Act  shall  interfere 
with  the  Maintenance  or  Repair,  under  any  such  Special 
Act,  of  any  Work  lawfully  constructed  before  the  passing 
of  this  Act  by  any  such  Company  under  any  such  Special 
Act,  or  with  the  increasing  of  the  Number  of  the  Wires 
forming  Part  of  any  such  Work  ;  and  that  nothing  in  this 
Act  shall  relieve  any  such  Company  from  any  Obligation 
or  Liability  under  any  Agreement  made  before  the  passing 
of  this  Act,  or  shall  make  lawful  any  Work  constructed 
by  the  Company  before  the  passing  of  this  Act  which  is 
the  Subject  of  any  Proceedings  at  Law  or  in  Equity 
pending  at  the  passing  of  this  Act,  or  which  has  been  con- 
structed without  such  Consent  as  was  required  for  the 
Construction  thereof  before  the  passing  of  this  Act. 

3.  In  this  Act — 

The  Term  "  the  Company "  means  any  Company  to  be  hereafter 
authorized  as  aforesaid  (herein-after  distinguished  by  the  Term 
"future  Company"),  or  any  Company  already  so  authorized 
(herein-after  distinguished  by  the  Term  "existing  Com- 
pany"): 

The  Term  "  Telegraph "  means  a  Wire  or  Wires  used  for  the 
Purpose  of  Telegraphic  Communication,  with  any  Casing, 
Coating,  Tube,  or  Pipe  inclosing  the  same,  and  any  Apparatus 
connected  therewith  for  the  Purpose  of  Telegraphic  Communi- 
cation : 

The  Term  "  Post "  means  a  Post,  Pole,  Standard,  Stay,  Strut,  or 
other  aboveground  Contrivance  for  carrying,  suspending,  or 
supporting  a  Telegraph  : 

The  Term  "  Work  "  includes  Telegraphs  and  Posts  : 

The  Term  "  Street "  means  a  public  Way  situate  within  a  City, 
Town,  or  Village,  or  between  Lands  continuously  built  upon 
on  either  Side,  and  repaired  at  the  public  Expense,  or  at  the 
Expense  of  any  Turnpike  or  other  public  Trust,  or  ratione 


ENGLAND.  423 

tenures,  including  the  Footpaths  of  such  "Way,  and  any  Bridge 
forming  Part  thereof: 

The  Term  "  public  Road  "  means  a  public  Highway  for  Carriages 
being  repaired  at  the  public  Expense,  or  at  the  Expense  of 
any  Turnpike  or  other  public  Trust,  or  ratione  tenures,  and  not 
being  a  Street,  including  the  Footpaths  of  such  public  High- 
way, and  any  Bridge  forming  Part  thereof,  and  also  any  Land 
by  the  Side  and  forming  Part  of  such  a  public  Highway,  but 
not  including  a  Railway  or  Canal: 

The  Term  "  Railway "  includes  any  Station,  Work,  or  Building 
connected  with  a  Railway : 

The  Term  "  Canal  "  includes  Navigation  or  navigable  River,  and 
any  Dock,  Basin,  Towing-path,  Wharf,  Work,  or  Building 
connected  with  a  Canal : 

The  Term  "  Land  "  means  'Land  not  being  a  Street  or  public 
Road,  and  not  being  Land  by  the  Side  and  forming  Part  of  a 
public  Road,  and  includes  Land  laid  out  for  and  proposed  by 
the  Owner  to  be  converted  into  a  Street  or  public  Road : 

The  Term  "  Body "  includes  a  Body  of  Trustees  or  Commis- 
sioners, Municipal  Corporation,  Grand  Jury,  Board,  Vestry, 
Company,  or  Society,  whether  incorporated  or  not ;  and  any 
Provision  referring  to  a  Body  applies  to  a  Person,  as  the  Case 
may  require : 

The  Term  "  Person  "  includes  Corporation  Aggregate  or  Sole  : 

The  Term  "  the  Board  of  Trade  "  means  the  Lords  of  the  Com- 
mittee of  Her  Majesty's  Privy  Council  for  the  Time  being  ap- 
pointed for  the  Consideration  of  Matters  relating  to  Trade  and 
Foreign  Plantations : 

The  Term  "  Justice"  means  Justice  of  the  Peace  acting  for  the 
Place  where  the  Matter  requiring  the  Cognizance  of  any  such 
Justice  arises : 

The  Term  "  Two  Justices  "  means  Two  or  more  Justices  met  and 
acting  together,  or  any  One  Police  Magistrate  or  Justice  having 
by  Law  Authority  to  act  alone  for  any  Purpose  with  the 
Powers  of  Two  Justices : 

The  Term  "Sheriff"  means  the  Sheriff  Depute  of  the  County  or 
Ward  of  a  County  in  Scotland,  and  the  Steward  Depute  of  the 
Stewartry  in  Scotland,  in  which  the  Matter  submitted  to  the 
Cognizance  of  the  Sheriff  arises,  and  includes  the  Substitutes 
of  such  Sheriff  Depute  and  Steward  Depute  respectively. 


424  APPENDIX. 

4.  The  Provisions  of  The  Railway  Clauses  Consolidation  Act, 
1845,  with  respect  to  the  Recovery  of  Damages  not  specially  pro- 
vided for,  and  of  Penalties,  and  to  the  Determination  of  any  other 
Matter  referred  to  Justices,  and  the   Provisions  of  The   Railway 
Clauses  Consolidation  (Scotland)  Act,  1845,  with  respect  to  the  Re- 
covery of  Damages  not  specially  provided  for,  and  to  the  Determina- 
tion of  any  other  Matter  referred  to  the  Sheriff,  or  to  Justices,  shall, 
so  far  as  the  same  are  applicable,  and  save  so  far  as  the  same  are 
inconsistent  with  any  express  Provision  of  this  Act,  be  incorpo- 
rated with  this  Act ;  and  Terms  used  in  those  Provisions  shall  be 
interpreted  as  the  same  Terms  are  directed  to  be  interpreted  in  this 
Act. 

5.  The  following  Provisions  shall  apply  to  Notices  and  Consents 
under  this  Act : 

(1.)  Every  Notice  or  Consent  shall  be  in  Writing  or  Print,  or 
partly  in  Writing  and  partly  in  Print : 

(2.)  Any  Notice  to  or  by  the  Company  or  a  Body  having  the 
Control  of  a  Street  or  public  Road,  or  of  the  Sewerage  or 
Drainage  thereunder,  may  be  given  to  or  by  the  Secretary, 
Clerk,  or  Surveyor,  or  other  like  Officer  (if  any)  of  the 
Company  or  of  such  Body,  as  the  Case  may  be : 

(3.)  Any  Consent  may  be  given  on  such  pecuniary  or  other 
Terms  or  Conditions  (being  in  themselves  lawful),  or  sub- 
ject to  such  Stipulations  as  to  the  Time  or  Mode  of  Exe- 
cution of  any  Work,  or  as  to  the  Removal  or  Alteration, 
in  any  Event,  of  any  Work,  or  as  to  any  other  thing  con- 
nected with  or  relative  to  any  Work,  as  the  Person  or 
Body  giving  Consent  thinks  fit. 

General  Powers  of  Company. 

6.  Subject  to  the  Restrictions  and  Provisions  herein-after  con- 
tained, the  Company  may  execute  Works  as  follows  : 

(1.)  They  may  place  and  maintain  a  Telegraph  under  any  Street 
or  public  Road,  and  may  alter  or  remove  the  same : 

(2.)  They  may  place  and  maintain  a  Telegraph  over,  along,  or 
across  any  Street  or  public  Road,  and  place  and  maintain 
Posts  in  or  upon  any  Street  or  public  Road,  and  may  alter 
or  remove  the  same  : 


ENGLAND.  425 

(3.)  They  may,  for  the  Purposes  aforesaid,  open  or  break  up  any 
Street  or  public  Road,  and  alter  the  Position  thereunder 
of  any  Pipe  (not  being  a  Main)  for  the  Supply  of  Water 
or  Gas  : 

(4.)  They  may  place  and  maintain  a  Telegraph  and  Posts  under, 
in,  upon,  over,  along,  or  across  any  Land  or  Building,  or 
any  Railway  or  Canal,  or  any  Estuary  or  Branch  of  the 
Sea,  or  the  Shore  or  Bed  of  any  Tidal  Water,  and  may 
alter  or  remove  the  same : 

Provided  always,  that  the  Company  shall  not  be  deemed  to  acquire 
any  Right  other  than  that  of  User  only  in  the  Soil  of  any  Street  or 
public  Road  under,  in,  upon,  over,  along,  or  across  which  they  place 
any  Work. 

7.  In  the  Exercise  of  the  Powers  given  by  the  last  foregoing 
Section  the  Company  shall  do  as  little  damage  as  may  be,  and  shall 
make  full  Compensation  to  all  Bodies  and  Persons  interested  for  all 
Damage  sustained  by  them  by  reason  or  in  consequence  of  the  Ex- 
ercise of  such  Powers,  the  Amount  and  Application  of  such  Com- 
pensation  to  be  determined  in  manner   provided  by  The  Lands 
Clauses  Consolidation  Act,  1845,  and  The  Lands  Clauses  Consoli- 
dation (Scotland)  Act,  1845,  respectively,  and  any  Act  amending 
those  Acts,  for  the  Determination  of  the  Amount  and  Application 
of  Compensation  for  Lands  taken  or  injuriously  affected. 

8.  In  the  Exercise  of  the  aforesaid  Powers,  the  Company  shall 
also  be  subject  to  the  following  Restrictions  : 

(1.)  They  shall  cause  as  little  Detriment  or  Inconvenience  as 
Circumstances  admit  to  the  Body  or  Person  to  or  by 
whom  any  Pipe  for  the  Supply  of  Water  or  Gas  belongs 
or  is  used : 

(2.)  Before  they  alter  the  Position  of  any  such  Pipe  they  shall 
give  to  the  Body  to  whom  the  same  belongs  Notice  of 
their  Intention  to  do  so,  specifying  the  Time  at  which 
they  will  begin  to  do  so,  such  Notice  to  be  given  Twenty- 
four  Hours  at  least  before  the  Commencement  of  the 
Work  for  effecting  such  Alteration : 

(3.)  The  Company  shall  not  execute  such  Work  except  under 
the  Superintendence  of  the  Body  to  whom  such  Pipe  be- 
longs, unless  such  Body  refuses  or  neglects  to  give  such 


426  APPENDIX. 

Superintendence  at  the  Time  specified  in  the  Notice  for 
the  Commencement  of  the  Work,  or  discontinues  the  same 
during  the  Work  ;  and  the  Company  shall  execute  such 
Work  to  the  reasonable  Satisfaction  of  such  Body : 
(4.)  The  Company  shall  pay  all  reasonable  Expenses  to  which 
such  Body  may  be  put  on  account  of  such  Superinten- 
dence : 

And  the  Body  to  whom  any  such  Pipe  belongs  may,  when  and  as 
Occasion  requires,  alter  the  Position  of  any  Work  of  the  Company 
already  constructed,  or  to  be  hereafter  constructed,  under,  in,  or 
upon  a  Street  or  public  Road,  on  the  same  Conditions  as  are  by  the 
last  foregoing  and  present  Sections  imposed  on  the  Company  in  re- 
lation to  such  a  Body,  mutatis  mutandis. 


Restrictions  as  to  Telegraphs  under  Streets  and  public  Roads. 

9.  The  Company  shall  not  place  a  Telegraph  under  any  Street 
within  the  Limits  of  the  District  over  which  the  Authority  of  the 
Metropolitan  Board  of  Works  extends,  or  of  any  City  or  Municipal 
Borough  or  Town  Corporate,  or  of  any  Town  having  a  Population 
of  Thirty  thousand  Inhabitants  or  upwards  (according  to  the  latest 
Census),  except  with  the  Consent  of  the  Bodies  having  the  Control 
of  the  Streets  within  such  respective  Limits. 

10.  Where  the  Company  has  obtained  Consent  to  the  placing,  or 
by  virtue  of  the  Powers  of  the  Company  under  this  Act  intends  to 
proceed  with  the  placing,  of  a  Telegraph  under  a  Street  or  public 
Road,  the  Depth,  Course,  and  Position  at  and  in  which  the  same  is 
to  be  placed  shall  be  settled  between  the  Company  and  the  follow- 
ing Bodies : 

The  Body  having  the  Control  of  the  Street  or  public  Road : 
The  Body  having  the  Control  of  the   Sewerage   or   Drainage 

thereunder : 

But  if  such  Settlement  is  not  come  to  with  any  such  Body,  the  fol- 
lowing Provisions  shall  take  effect : 

(1.)  The  Company  may  give  to  such  Body  a  Notice  specifying 
the   Depth,   Course,  and   Position  which   the    Company 
desires : 
(2.)  If  the  Body  to  whom  such  Notice  is  given  does  not,  within 


ENGLAND.  427 

Twenty-eight  Days  after  the  giving  of  such  Notice,  give 
to  the  Company  a  Counter-Notice  objecting  to  the  Pro- 
posal of  the  Company,  and  specifying  the  Depth,  Course, 
and  Position  which  such  Body  desires,  they  shall  be 
deemed  to  have  agreed  to  the  Proposal  of  the  Company : 
(3.)  In  the  event  of  ultimate  Difference  between  the  Company 
and  such  Body,  the  Depth,  Course,  and  Position  shall  be 
determined  in  England  or  Ireland  by  Two  Justices,  and 
in  Scotland  by  Two  Justices  or  the  Sheriff. 

11.  Every  underground  Tube  or  Pipe  of  the  Company  shall  be 
so  marked  as  to  distinguish  it  from  Tubes  or  Pipes  of  every  other 
Company. 

12.  The  Company  shall  not  place  a  Telegraph  over,  along,  or 
across  a  Street  or  public  Road,  or  a  Post  in  or  upon  a  Street  or 
public  Road,  except  with  the  Consent  of  the  Body  having  the  Con- 
trol of  such  Street  or  public  Road ;  and  where  a  public  Road  passes 
through  or  by  the  Side  of  any  Park  or  Pleasure  Grounds,  and  where 
a  public  Road  crosses,  by  means  of  a  Bridge  or  Viaduct,  or  abuts 
on   any  ornamental  Water   belonging   to   any  Park   or   Pleasure 
Grounds,  and  where  a  public  Road  crosses  or  abuts  on  a  private 
Drive  through  any  Park  or  Pleasure  Grounds,  or  to  any  Mansion, 
the   Company  shall  not,  without,  or  otherwise  than  in  accordance 
with,  the  Consent  of  the  Owner,  Lessee,  and  Occupier  of  such  Park, 
Pleasure  Grounds,  or  Mansion,  place  any  Work  above  Ground  on 
such  public  Road.          . 

13.  Where  any  Landowner  or  other  Person  is  liable  for  the  Re- 
pair of  any  Street  or  public  Road  (notwithstanding  that  the  same 
is  dedicated  to  the  Public),  the  Company  shall  not  place  any  Work 
under,  in,  upon,  over,  along,  or  across  such  Street  or  public  Road, 
except  with  the  Consent  of  such  Landowner  or  other  Person,  in 
addition  to  the  Consent  of  the  Body  having  the   Control  of  such 
Street  or  public  Road,  where  under  this  Act  such  last-mentioned 
Consent  is  required :  Provided,  that  where  the  Company  places  a 
Telegraph  across  or  over  any  Street  or  public  Road  they  shall 
not  place  it  so  low  as  to  stop,  hinder,  or  interfere  with  the  Pas- 
sage  for   any   Purpose   whatsoever    along    the    Street   or   public 
Road. 


428  APPENDIX. 


Removal  of  Works  affecting  Streets  and  public  Roads. 

14.  In  the  following  Cases  — 

(1.)  If  any  Part  of  the  Company's  Works  is  abandoned,  or  suf- 
fered to  fall  into  Decay ; 

(2.)  If  the  Company  is  dissolved,  or  ceases  for  Six  Months  to 

carry  on  Business, 

the  Body  having  the  Control  of  any  Street  or  public  Road,  or  the 
Owner  of  any  Land  or  Building  affected  (in  the  former  Case)  by 
such  Part  of  the  Company's  Works  as  aforesaid,  or  (in  the  latter 
Case)  by  any  of  the  Company's  Works,  may  give  Notice  to  the 
Company,  or  leave  a  Notice  at  the  last  known  Office  or  Place  of 
Business  of  the  Company,  to  the  Effect  that  if  such  Works  as  are 
specified  in  the  Notice  are  not  removed  within  One  Month  after  the 
Notice  given  or  left,  the  same  will  be  removed  by  the  Body  having 
such  Control,  or  by  such  Owner ;  and  in  every  such  case,  unless 
such  Works  are  removed  accordingly,  the  Body  having  such  Con- 
trol or  such  Owner  may,  without  Prejudice  to  any  Remedy  against 
the  Company,  remove  such  Works,  or  any  Part  thereof,  and  sell  the 
Materials  thereof  or  of  any  Part  thereof,  and,  out  of  the  Proceeds 
of  such  Sale,  reimburse  themselves  their  Expenses  relative  to  such 
Notice,  Removal,  and  Sale,  and  consequent  thereon  (rendering  the 
Overplus,  if  any,  to  the  Company),  and  may  recover  any  unpaid 
Residue  of  such  Expenses  from  the  Company.  The  present  Sec- 
tion shall  apply  to  an  existing  Company,  in  respect  of  any  Work 
already  constructed  or  to  be  hereafter  constructed,  as  well  as  to  a 
future  Company. 

15.  In  case  the  Body  having  the  Control  of  any  Street  or  public 
Road  at  any  Time  hereafter  resolves  to  alter  the  Line  or  Level  of 
any  Portion  of  such  Street  or  Road  under,  in,  upon,  over,  along,  or 
across  which  any  Work  of  the  Company  constructed  either  before 
or  after  the  passing  of  this  Act  is  placed,  the  Company  shall  from 
Time  to  Time  be  bound,  on  receiving  One  Month's  Notice  of  such 
intended  Alteration,  and  at  their  own  Expense,  to  remove  such 
Work,  and  to  replace  the  same  in  such  Position  and  Manner  in  all 
respects  as  may  be  required  by  such  Body,  or,  in  the  event  of  Dif- 
ference between  such  Body  and  the   Company,  in  such  Position 
and  Manner  in  all  respects  as  may  be  determined  in  England  or 


ENGLAND.  429 

Ireland  by  Two  Justices,  and  in  Scotland  by  Two  Justices  or  the 
Sheriff. 

16.  Where  the  Company  has,  before  the  passing  of  this  Act, 
placed  Posts  in  or  upon  a  Street  or  public  Road,  and  the  Body 
having  the  Control  of  the  Street  or  Road  considers  the  Position  of 
any  such  Post  to  be  dangerous  or  inconvenient,  the  following  Pro- 
visions shall  take  effect : 

(1.)  Such  Body  may  give  to  the  Company  a  Notice  requiring 
them  to  remove  or  alter  the  Position  of  such  Post,  and 
specifying  the  Grounds  of  such  Requisition  : 

(2.)  The  Company  either  shall,  within  Fourteen  Days  after  Re- 
ceipt of  such  Notice,  remove  or  alter  the  Position  of  the 
Post  in  accordance  with  the  Notice ;  or  else,  if  they  do 
'"  not  intend  to  remove  or  alter  the  Position  of  the  Post  in 
accordance  with  the  Notice,  shall,  within  One  Week  after 
Receipt  of  the  Notice,  deliver  to  such  Body  a  Counter- 
Notice,  specifying  their  Objection  to  such  Removal  or 
Alteration : 

(3.)  Such  Body  may  send  Copies  of  the  Notice  and  Counter- 
Notice  to  the  Board  of  Trade : 

(4.)  As  soon  as  may  be  after  Receipt  of  such  Copies,  the  Board 
of  Trade  shall  (unless  the  Difference  between  the  Body 
giving  the  Notice  and  the  Company  is  arranged)  make 
Inquiry  and  Examination,  and  hear  and  determine  the 
Matter  of  the  Notice  and  Counter-Notice  : 

(5.)  On  hearing  any  such  Matter,  the  Board  of  Trade  may  direct 
that  the  Company  shall  comply  with  the  Notice,  wholly  or 
in  part,  or  subject  to  any  such  Modifications  as  the  Board 
of  Trade  prescribes,  or  on  condition  that  the  Body  giving 
the  Notice  shall  afford  to  the  Company  all  reasonable  and 
proper  Facilities  in  their  Power  for  substituting  some 
other  Work  for  that  to  which  the  Notice  relates,  or  on 
any  such  other  Condition  as  to  the  Board  of  Trade  seems, 
according  to  the  Circumstances  of  the  Case,  just  and  ex- 
pedient, and  the  Expenses  incurred  in  or  about  such 
Removal  or  Alteration  shall  be  borne  and  paid  by  the 
Company  or  by  the  Body  giving  the  Notice,  or  partly  by 
one  and  partly  by  the  other,  as  to  the  Board  of  Trade 
seems,  according  to  the  Circumstances  of  the  Case,  just 


430  APPENDIX. 

and  expedient,  the  Amount  of  such  Expenses  to  be  deter- 
mined in  case  of  Difference  by  the  Board  of  Trade. 

Restrictions  as  to  the  opening  of  Streets  and  public  Roads. 

17.  Subject  to  any  special  Stipulations  made  with  a  Company  by 
the  Body  having  the  Control  of  a  Street  or  Public  Road,  and  to 
any  Determinations,  Orders,  or  Directions  of  the  Justices,  or  Sheriff 
as  aforesaid,  where  the  Company  proceeds  to  open  or  break  up  a 
Street  or  public  Road,  the  following  Provisions  shall  take  effect :  — 

(1.)  The  Company  shall  give  to  the  Bodies  between  whom  re- 
spectively and  the  Company  the  Depth,  Course,  and  Posi- 
tion of  a  Telegraph  under  such  Street  or  public  Road  are 
herein-before  required  to  be  settled  or  determined,  Notice 
of  their  Intention  to  open  or  break  up  such  Street  or  pub- 
lic Road,  specifying  the  Time  at  which  they  will  begin  to 
do  so,  —  such  Notice  to  be  given,  in  the  Case  of  an  under- 
ground Work,  Ten  Days  at  least,  and  in  the  Case  of  an 
aboveground  Work  Five  Days  at  least,  before  the  Com- 
mencement of  the  Work ;  except  in  case  of  Emergency, 
in  which -Case  Notice  of  the  Work  proposed  shall  be 
given  as  soon  as  may  be  after  the  Commencement 
thereof : 

(2.)  The  Company  shall  not  (save  in  case  of  Emergency)  open 
or  break  up  any  Street  or  public  Road,  except  under 
the  Superintendence  of  the  Bodies  to  whom  respectively 
Notice  is  by  the  present  Section  required  to  be  given,  unless 
such  Bodies  respectively  refuse  or  neglect  to  give  such 
Superintendence  at  the  Time  specified  in  the  Notice  for 
the  Commencement  of  the  Work,  or  discontinue  the  same 
during  the  Work : 

(3.)  The  Company  shall  pay  all  reasonable  Expenses  to  which 
such  Bodies  respectively  may  be  put  on  account  of  such 
Superintendence. 

18.  Subject  to  any  such  special   Stipulations  as  aforesaid,  after 
the  Company  has  opened  or  broken  up  a  Street  or  public  Road  they 
shall  be  under  the  following  further  Obligations  :  — 

(1.)  They  shall,  with  all  convenient  Speed,  complete  the  Work 
on  account  of  which  they  opened  or  broke  up  the  same, 


ENGLAND.  431 

and  fill  in  the  Ground,  and  make  good  the  Surface,  and 
generally  restore  the  Street  or  public  Road  to  as  good  a 
Condition  as  that  in  which  it  was  before  being  opened 
or  broken  up,  and  carry  away  all  Rubbish  occasioned 
thereby : 

(2.)  They  shall  in  the  meantime  cause  the  Place  where  the  Street 
or  public  Road  is  opened  or  broken  up  to  be  fenced  and 
watched,  and  to  be  properly  lighted  at  Night : 
(3.)  They  shall  pay  all  reasonable  Expenses  of  keeping  the 
Street  or  public  Road  in  good  Repair  for  Six  Months  after 
the  same  is  restored,  so  far  as  such  Expenses  may  be  in- 
creased by  such  opening  or  breaking  up : 

If  the  Company  fails  to  comply  in  any  respect  with  the  Provisions 
of  the  present  Section,  they  shall  for  every  such  Offence  (without 
Prejudice  to  the  Right  of  any  Person,  to  enforce  specific  Perform- 
ance of  the  Requirements  of  this  Act,  or  to  any  other  Remedy 
against  them),  be  liable  to  a  penalty  not  exceeding  Twenty  Pounds, 
and  to  a  further  Penalty  not  exceeding  Five  Pounds  for  each  Day 
during  which  any  such  Failure  continues  after  the  First  Day  when 
such  Penalty  was  adjudged  ;  and  any  such  Penalty  shall  (notwith- 
standing anything  herein-before,  or  in  any  Act  relating  to  Municipal 
Corporations,  or  to  the  Metropolitan  Police  Force,  or  in  any  other 
Act,  contained)  go  and  belong  to  the  Body  having  the  Control  of 
the  Street  or  public  Road,  and  shall  form  Part  of  the  Funds  appli- 
cable by  them  to  the  Maintenance  of  the  Street  or  public  Road. 

19.  Whenever  the  permanent  Surface  or  Soil  of  any  Street  or 
public  Road  is  broken  up  or  opened  by  the  Company,  it  shall  be 
lawful  for  the  Body  having  the  Control  of  the  Street  or  Road,  in 
case  they  think  it  expedient  so  to  do,  to  fill  in  the  Ground,  and  to 
make  good  the  Pavement  or  Surface  or  Soil  so  broken  up  or 
opened,  and  to  carry  away  the  Rubbish  occasioned  thereby,  instead 
of  permitting  such  Work  to  be  done  by  the  Company ;  and  the 
Costs  and  Expenses  of  filling  in  such  Ground,  and  of  making  good 
the  Pavement  or  Soil  so  broken  up  or  opened,  shall  be  repaid  on 
Demand  to  the  Body  having  the  Control  of  the  Street  or  Road  by 
the  Company,  and  in  default  thereof  may  be  recovered  by  the  Body 
having  the  Control  of  the  Street  or  Road  from  the  Company  as  a 
Penalty  is  or  may  be  recoverable  from  the  Company. 


432  APPENDIX. 

20.  The  Company  shall  not  stop  or  impede  Traffic  in  any  Street 
or  public  Road,  or  into  or  out  of  any  Street  or  public  Road,  further 
than  is  necessary  for  the  proper  Execution  of  their  Works.     They 
shall  not  close  against  Traffic  more  than  One  Third  in  Width  of  any 
Street  or  public  Road,  or  of  any  Way  opening  into  any  Street  or 
public  Road,  at  One  Time ;    and  in  case   Two   Thirds   of  such 
Street  or  Road  are  not  wide  enough  to  allow  Two  Carriages  to  pass 
each  other,  they  shall  not  occupy  with  their  Works  at  One  Time 
more  than  Fifty  Yards  in  Length  of  the  One  Third  thereof,  except 
with  the  special  Consent  of  the  Body  having  the  Control  thereof. 

Restrictions  as  to  Works  affecting  private  or  Crown  Property. 

21.  The  Company  shall  not  place  any  Work  by  the  Side  of  any 
Land  or  Building,  so  as  to  stop,  hinder,  or  interfere  with  Ingress  or 
Egress  for  any  purpose  to  or  from  the  same,  or  to  place  any  Work 
under,  in,  upon,  over,  along,  or  across  any  Land  or  Building,  except 
with  the  previous  Consent  in  every  Case  of  the  Owner,  Lessee,  and 
Occupier  of  such  Land  or  Building,  which  Consent,  iu  case  of  any 
Land  or  Building  belonging  to  or  enjoyed  by  the  Queen's  most  Ex- 
cellent Majesty  in  right  of  Her  Crown,  may  be  given  by  the  Com- 
missioners for  the  Time  being  of  Her  Majesty's  Woods,  Forests, 
and  Land  Revenues,  or  One  of  them,  on  behalf  of  Her  Majesty : 
Provided  always,  that  with  respect  to  Lands  and  Buildings  situate 
within  the  Limits  of  the  District  over  which  the  Authority  of  the 
Metropolitan  Board  of  Works  extends  (herein-after  referred  to  as 
the  Metropolis),  or  within  the  Limits  of  any  City  or  Municipal 
Borough  or  Town  Corporate,  or  any  Town  having  a  Population  of 
Thirty  thousand  Inhabitants  or  upwards,  according  to  the  latest 
Census  (herein-after  referred  to  as  a  City  or  large  Town),  if  the 
Body  having  the  Control  of  any  Street  in  the  Metropolis  or  a  City 
or  large  Town,  consents  to  the  placing  of  Works  by  the  Company 
in,  upon,  over,  along,  or  across  that  Street,  then  and  in  every  such 
Case  that  Consent  shall  (unless  it  is  otherwise  provided  by  the 
Terms  thereof),  be  sufficient  Authority  for  the  Company,  without 
any  further  Consent,  except  as  to  any  Land  or  Building  belonging  to 
or  enjoyed  by  Her  Majesty  in  right  of  Her  Crown,  to  place  and 
maintain  a  Telegraph  over,  along,  or  across  any  Building  adjoining 
to  or  near  the  Street,  and  situate  within  the  Limits  of  the  District 
over  which  the  Powers  of  the  consenting  Body  extend,  or  over, 


ENGLAND.  433 

along,  or  across  any  Land,  not  being  laid  out  as  Building  Land,  or 
not  being  a  Garden  or  Pleasure  Ground,  adjoining  to  or  near  the 
Street  and  situate  within  the  same  Limits,  subject  nevertheless  to 
the  following  Provisions  :  — 

(1.)  Twenty-one  Days  at  least  before  the  Company  proceeds  to 
place  a  Telegraph  by  virtue  of  the  Authority  so  conferred, 
they  shall  publish  a  Notice  stating  they  have  obtained  the 
Consent  of  such  Body  as  aforesaid,  and  describing  the  in- 
tended Course  of  such  Telegraph : 

(2.)  Where  the  Company  by  virtue  of  the  Authority  so  conferred 
places  a  Telegraph  directly  over  any  Dwelling  House, 
they  shall  not  place  it  at  a  less  Height  above  the  Roof 
thereof  than  Six  Feet,  if  the  Owner,  Lessee,  or  Occupier 
thereof  objects  to  their  placing  it  at  a  less  Height : 
(3.)  If  at  any  Time  the  Owner,  Lessee,  or  Occupier  of  any 
Building  or  Land  adjoining  to  a  Building,  directly  over 
which  Building  or  Land  the  Company  by  virtue  of  the 
Authority  so  conferred  places  a  Telegraph,  desires  to  raise 
the  Building  to  a  greater  Height,  or  to  extend  it  over  such 
Land,  the  Company  shall  increase  the  Height  or  otherwise 
alter  the  Position  of  the  Telegraph,  so  that  the  same  may 
not  interfere  with  the  raising  or  Extension  of  the  Build- 
ing, within  Fourteen  Days  after  receiving  from  the  Owner, 
Lessee,  or  Occupier  a  Notice  of  his  Intention  to  raise  or 
extend  the  Building,  or  in  case  of  Difference  between  the 
Company  and  the  Owner,  Lessee,  or  Occupier  as  to  his 
Intention,  then  within  Fourteen  Days  after  receiving  a 
Certificate,  signed  by  a  Justice  of  the  Peace,  certifying 
that  he  is  satisfied  of  the  Intention  of  the  Owner,  Lessee, 
or  Occupier  to  raise  or  extend  the  Building : 
(4.)  The  Company  shall  make  full  Compensation  to  the  Owner, 
Lessee,  and  Occupier  of  any  Land  or  Building  over, 
along,  or  across  which  the  Company  by  virtue  of  the 
Authority  so  conferred  places  a  Telegraph,  and  which  may 
be  shown  to  be  in  any  respect  prejudicially  affected  there- 
by, the  Amount  of  such  Compensation  to  be  determined  in 
manner  provided  by  the  said  Lands  Clauses  Consolidation 
Acts  respectively  and  any  Act  amending  those  Acts  for 
the  determination  of  the  Amount  of  Compensation  with 
respect  to  Lands  injuriously  affected : 
28 


43  A  APPENDIX. 

Provided  also,  that  the  Consent  of  any  Person  occupying  as  a 
Tenant  from  Year  to  Year  only  shall  not  be  required,  nor  shall 
any  Person  so  occupying  be  entitled  to  such  Compensation  as  afore- 
said. 

22.  Subject  and  without  Prejudice  to  the  foregoing  Provisions, 
the  Company  shall  not  place  a  Telegraph  above  Ground,  or  a  Post, 
within  Ten  Yards  of  a  Dwelling  House,  or  place  a  Telegraph  above 
Ground   across   an   Avenue  or  Approach  to  a  Dwelling   House, 
except  subject  and  according  to  the  following  Restrictions  and  Pro- 
visions :  — 

(1.)  They  shall  in  each  such  Case  obtain  the  Consent  of  the 
Occupier  (if  any)  of  such  Dwelling  House,  and  if  there  is 
no  Occupier,  then  of  the  Lessee  entitled  to  Possession,  and 
if  there  is  none,  then  of  the  Owner : 

(2.)  The  Consent  of  an  Occupier  shall  be  effective  only  during 
the  Continuance  of  his  Occupation  : 

(3.)  On  the  Termination  of  the  Occupation  of  any  Occupier  the 
Lessee  or  Owner  entitled  to  Possession,  if  he  did  not  con- 
sent to  the  placing  of  the  Telegraph  or  Post,  may  give 
Notice  to  the  Company  that  he  requires  it  to  be  removed : 

(4.)  The  Company  shall  remove  the  same  accordingly  within 
One  Month  after  receiving  such  Notice  : 

(5.)  If  any  Question  arises  between  a  Lessee  or  Owner  and  the 
Company  as  to  such  Removal,  or  the  Time  or  Mode 
thereof,  the  same  shall  be  referred  to  the  Determination 
in  England  or  Ireland  of  Two  Justices,  and  in  Scotland 
of  Two  Justices  or  the  Sheriff,  which  Justices  or  Sheriff 
may  give  such  Directions  as  to  such  Removal,  and  the 
Time  and  Mode  thereof,  as  may  seem  reasonable,  and  may 
impose  on  the  Company  for  not  carrying  such  directions 
into  effect  such  Penalty  not  exceeding  Five  Pounds  a  Day 
as  may  seem  just. 

23.  Before  the  Company  proceeds  to  place  a  Telegraph  over, 
along,  or  across  a  Street  (not  being  a  Street  in  the  Metropolis  or  in 
a  City  or  large  Town)  or  a  public  Road,  or  to  place  Posts  in  or 
upon  a  Street  (not  being  such  a  Street  as  aforesaid)  or  a  public 
Road,  they  shall  publish  a  Notice  stating  that  they  have  obtained 
the  Consent  in  that  Behalf  of  the  Body  having  the  Control  of  the 


.     ENGLAND.  435 

Street  or  public  Road,  and  describing  the  intended  Course  of  the 

Telegraph,  — 

(1.)  By  affixing  such  Notice  on  some  conspicuous  Places  by  the 
Side  of  the  Part  of  the  Street  or  Road  affected,  at  Dis- 
tances of  not  more  than  One  Mile  apart : 

(2.)  By  leaving  such  Notice  at  every  Dwelling ,  House  fronting 
on  the  Part  of  the  Street  or  Road  affected,  and  being 
within  Fifty  Feet  thereof: 

(3.)  By  inserting  such  Notice  as  an  Advertisement  once  at  least 
in  each  of  Two  successive  Weeks  in  some  One  and  the 
same  local  Newspaper  circulating  in  the  Neighborhood  of 
the  Part  of  the  Street  or  Road  affected  : 

And  they  shall  not  so  place  any  such  Telegraph  or  Post  until  the 

Expiration  of  Twenty-one  Days  from  the  last  Publication  of  such 

Advertisement. 

24.  At  any  Time  during  such  Twenty-one    Days  the  Owner, 
Lessee,  or  Occupier  of  any  Land  or  Building  adjoining  to  either 
Side  of  such  Street  or  Road  may  give  to  the   Company  Notice  of 
his  Objection  to  their  intended  Works  as  prejudicially  affecting  such 
Land  or  Building,  and  send  to  the  Board  of  Trade  a  Copy  of  his 
Notice  of  Objection. 

25.  Until  such  Objection  is  settled,  or  is  determined  in  manner 
herein-after  provided,  the  Company  shall  not  execute  that  Part  of 
their  intended  Works  to  which  the  Objection  relates. 

26.  As  soon  as  may  be  after  the  Receipt  of  such  Copy  of  Notice 
of  Objection,  the  Board  of  Trade  shall  (unless  the  Difference  be- 
tween the  Company  and  -the  Person  objecting  is  arranged)  make 
Inquiry  and  Examination,  and  hear  and  determine  the  Matter  of  the 
Objection. 

27.  On  hearing  any  such  Objection  the  Board  of  Trade  — 
(1.)  may  allow  the  Objection,  wholly  or  in  part;  or 

(2.)  may  authorize  the  Company  to  proceed  with  their  Works, 
subject  to  the  Provisions  of  this  Act,  according  to  their 
published  Notice,  paying  to  the  Owner,  Lessee,  or  Occu- 
pier objecting  full  Compensation  (the  Amount  thereof  to 


436  APPENDIX. 

be  determined,  in  case  of  Difference,  by  the  Board  of 
Trade)  for  any  Damage  done  to  him  ;  or 

(3.)  may  authorize  the  Company  to  so  proceed  subject  to  any 
such  Conditions  as  to  the  Time  or  Mode  of  Execution  of 
any  Work,  or  as  to  the  Removal  or  Alteration  in  any 
event  of  any  Work,  or  as  to  any  other  Thing  connected 
with  or  relative  to  any  Work,  as  the  Board  of  Trade 
thinks  fit ;  or 

(4.)  may  authorize  the  Company  to  so  proceed  subject  to  any 
such  Modification  of  any  intended  Work  as  the  Board  of 
Trade  prescribes ;  but  so  that  in  that  Case  such  Notice 
and  Opportunity  of  objecting  and  being  heard  as  the 
Board  of  Trade  directs  shall  be  given  to  any  Owner, 
Lessee,  or  Occupier  whom  such  Modification  may  affect. 

28.  The  Determination  of  the  Board  of  Trade  on  the  Matter  of 
any  such  Objection  shall  be  final  and  conclusive. 

29.  The  Board  of  Trade  may  allow  to  any  Owner,  Lessee,  or 
Occupier  so  objecting  such  Costs  as  seem  just ;  to  be  paid  by  the 
Company. 

Removed  or  Alteration  of  Works  affecting  Land  or  Buildings. 

30.  Where  at  any  Time  before  or  after  the  passing  of  this  Act 
the   Company  has  constructed  any  Work,  under,  in,  upon,  over, 
along,  or  across  any  Land  or  Building,  or  any  Street  or  public  Road 
adjoining  to  or  near  any  Land  or  Building,  and  any  Owner,  Lessee, 
or  Occupier  of  such  Land  or  Building,  or  any  Lord  of  a  Manor,  or 
other  Person  having  any  Interest  in  such  Land  or  Building,  desires 
to  build  upon  or  inclose  such  Land,  or  in  any  Manner  to  improve  or 
alter  such  Land  or  Building,  or  to  use  such  Land  or  Building  in 
some  Manner  in  which  it  was  not  actually  used  at  the  Time  of  the 
Construction  of  such  Work  by  the  Company,  and  with  which  the 
Continuance  of  such  Work  would  interfere,  then  and  in  every  such 
Case  the  following  Provisions  shall  take  effect : 

(1.)  Such  Owner,  Lessee,  Occupier,  Lord  of  a  Manor,  or  other 
Person  interested  may  give  to  the  Company  a  Notice 
specifying  the  Nature  of  such  intended  Building,  Inclo- 


ENGLAND.  437 

sure,  Improvement,  Alteration,  or  other  Use  of  the  Land 
or  Building,  including  Ingress  or  Egress  thereto  or  there- 
from, and  requiring  the  Company  to  remove  or  alter  their 
Work  so  that  the  same  may  not  interfere  therewith  : 

(2.)  Within  Fourteen  Days  after  the  Receipt  of  such  Notice,  or 
in  case  of  Difference  between  the  Company  and  the  Per- 
son giving  the  same  as  to  his  Intention,  then  within  Four- 
teen Days  after  the  Receipt  of  a  Certificate,  signed  by  a 
Justice  of  the  Peace,  certifying  that  he  is  satisfied  of  the 
Intention  of  such  Person  to  make  such  Building,  Inclo- 
sure,  Improvement,  Alteration,  or  other  Use  of  the  Land 
or  Building,  and  that  the  Continuance  of  such  Work  would 
interfere  therewith,  the  granting  of  such  Certificate  being 
deemed  to  be  a  Matter  referred  to  the  Determination  of 
the  Justice  so  certifying,  the  Company  shall  remove  or 
alter  their  Work  so  that  the  same  shall  not  interfere  with 
such  intended  Building,  Inclosure,  Improvement,  or  Alte- 
ration, or  other  Use  of  the  Land  or  Building : 

(3.)  When  such  Certificate  is  required  by  the  Company  the  Costs 
thereof,  when  obtained,  shall  be  paid  by  the  Company  to 
the  Person  giving  the  Notice  : 

(4.)  Nothing  herein  shall  empower  any  Person  to  obtain  the 
Removal  or  Alteration  of  any  Work  contrary  to  the  Terms 
of  any  Grant  or  Consent  in  Writing  made  or  given  by 
him,  or  by  any  Person  through  whom  he  takes  his  Estate 
or  Interest. 

31.  Where  the  Company  has,  before  the  passing  of  this  Act, 
constructed  any  Work  under,  in,  upon,  over,  along,  or  across  a 
Street  or  public  Road,  and  the  Owner,  Lessee,  or  Occupier  of  any 
Land  or  Building  adjoining  to  or  near  the  Street  or  public  Road 
considers  such  Land  or  Building  to  be  prejudicially  affected  by  such 
Work,  then  the  following  Provisions  shall  take  effect: 

(1.)  Such  Owner,  Lessee,  or  Occupier  may  give  to  the  Company 
a  Notice  requiring  them  to  remove  or  alter  such  Work, 
and  specifying  the  Grounds  of  such  Requisition  : 
(2.)  The  Company  either  shall,  within  One  Month  after  Receipt 
of  such  Notice,  remove  or  alter  the  Work  in  accordance 
with  the  Notice,  or  else,  if  they  do  not  intend  to  remove 
or  alter  the  Work  in  accordance  with  the  Notice,  shall, 


438  APPENDIX. 

within  One  Week  after  Receipt  of  the  Notice,  deliver  to 
the  Person  giving  the  Notice  a  Counter-Notice,  specifying 
their  Objection  to  such  Removal  or  Alteration : 

(3.)  The  Person  giving  the  Notice  may  send  Copies  of  the  No- 
tice and  Counter-Notice  to  the  Board  of  Trade : 

(4.)  As  soon  as  may  be  after  Receipt  of  such  Copies  the  Board 
of  Trade  shall  (unless  the  Difference  between  the  Person 
giving  the  Notice  and  the  Company  is  arranged)  make 
Inquiry  and  Examination,  and  hear  and  determine  the 
Matter  of  the  Notice  and  Counter-Notice : 

(5.)  Such  Owner,  Lessee,  or  Occupier  shall  be  entitled  to  obtain 
a  Direction  from  the  Board  of  Trade  for  the  Removal  or 
Alteration  of  such  Work  in  every  Case  where  it  appears 
to  the  Board  of  Trade  that  such  Laud  or  Building  is 
prejudicially  affected  by  such  Work,  and  that  the  Removal 
or  Alteration  thereof  may  be  effected  consistently  with  a 
due  Regard  to  the  efficient  Working  of  the  Company's 
Telegraphs,  such  Direction  nevertheless  to  be  given  on 
such  Terms  and  Conditions  as  to  the  Board  of  Trade 
seem,  according  to  the  Circumstances  of  the  Case,  just 
and  expedient,  including,  if  it  seems  expedient,  the  Condi- 
tion of  the  Payment  by  such  Owner,  Lessee,  or  Occupier 
of  any  Expense  incurred  by  the  Company  in  or  about  such 
Removal  or  Alteration,  the  Amount  thereof  to  be  deter- 
mined in  case  of  Difference  by  the  Board  of  Trade : 

(6.)  Nothing  herein  shall  empower  any  Person  to  obtain  the 
Removal  or  Alteration  of  any  Work  contrary  to  the  Terms 
of  any  Grant  or  Consent  in  Writing  made  or  given  by  him, 
or  by  any  Person  through  whom  he  takes  his  Estate  or 
Interest. 

Restrictions  as  to  Works  affecting  Railways  and  Canals. 

32.  The  Company  shall  not  place  any  Work  under,  in,  upon, 
over,  along,  or  across  any  Railway  or  Canal,  except  with  the  Con- 
sent of  the  Proprietors  or  Lessees,  or  of  the  Directors  or  Persons 
having  the  Control  thereof.  But  this  Provision  shall  not  restrict 
the  Company  from  placing  any  Work  (subject  and  according  to  the 
other  Provisions  of  this  Act)  under,  in,  upon,  over,  along,  or  across 
any  Street  or  public  Road,  although  such  Street  or  public  Road  may 


ENGLAND.  439 

cross  or  be  crossed  by  a  Railway  or  Canal,  so  that  such  Work  do 
not  damage  the  Railway  or  Canal,  or  interfere  with  the  Use,  Altera- 
tion, or  Improvement  thereof. 

33.  If  at  any  Time  after  the  Company  has  placed  any  Work 
under,  in,  upon,  over,  along,  or  across  any  Canal,  any  Person  having 
Power  to  construct  Docks,  Basins,  or  other  Works  upon  any  Land 
adjoining  to  or  near  such  Canal  constructs  any  Dock,  Basin,  or 
Work  on  such  Land,  but  is  prevented  by  the  Company's  Work 
from  forming  a  Communication  for  the  convenient  Passage  of  Ves- 
sels with  or  without  Masts  between  such  Dock,  Basin,  or  other 
Work,  and  such  Canal,  or  if  the  Business  of  such  Dock,  Basin,  or 
other  Work  is  interfered  with  by  reason  or  in  consequence  of  any 
such  Work  of  the  Company,  then  the  Company,  at  the  Request  of 
such  Person,  and  on  having  reasonable  Facilities  afforded  them  by 
him  for  placing  a  Telegraph  round  such  Dock,  Basin,  or  other  Work, 
under,  in,  upon,  over,  along,  or  across  Land  belonging  to  or  under 
his  Control,  shall  remove  and  place  their  Work  accordingly.   If  any 
Dispute  arises  between  the  Company  and  such  Person  as  to  the 
Facilities  to  be  afforded  to  the  Company,  or  as  to  the  Direction  in 
which  the  Telegraph  is  to  be  placed,  it  shall  be  determined  by  the 
Board  of  Trade. 

Appointment  of  Arbitrator  by  Board  of  Trade. 

34.  If  in  any  Case  where  any  Matter  is  herein-before  authorized 
or  directed  to  be  determined  by  the  Board  of  Trade  it  appears  to 
the  Board  of  Trade  to  be  expedient,  for  Convenience  of  local  In- 
vestigation or  for  any  other  Reason,  that  the  Matter  should  be 
determined  by  an  Arbitrator,  the  Board  of  Trade  may,  notwith- 
standing anything  herein-before  contained,  and  whether  the  Board 
of  Trade  has  entered  on  the  Investigation  or  not,  refer  the  Matter 
to  some  competent  and  impartial  Person  as  Arbitrator ;  and  with 
respect  to  the  Matter  so  referred  any  such  Arbitrator  shall  have  the 
like  Authority  and  Jurisdiction  as  the  Board  of  Trade  has  under 
this  Act,  and  his  Determination  shall  have  the  same  Effect  as  a 
Determination  of  the  Board  of  Trade  under  this  Act.     The  Rea- 
sonable Expenses  and  Remuneration  of  the  Arbitrator  (to  be  settled 
in  case  of  Difference  by  the  Board  of  Trade)  shall  be  paid  by  the 
Company. 


440  APPENDIX. 


Restrictions  as  to  Works  affecting  Seashore. 

35.  The  Company  shall  not  place  any  "Work  under,  in,  upon, 
over,  along,  or  across  any  Estuary  or  Branch  of  the  Sea,  or  th« 
Shore  or  Bed  of  any  tidal  Water,  except  with  the  Consent  of  all 
Persons  and  Bodies  having  any  Right  of  Property,  or  other  Right, 
or  any  Power,  Jurisdiction,  or  Authority  in,  over,  or  relating  to  the 
same,  which  may  be  affected  or  be  liable  to  be  affected  by  the  Ex- 
ercise of  the  Powers  of  the  Company  (which  Consent,  where  Her 
Majesty  in  right  of  Her  Crown  is  interested,  may  be  given  on  be- 
half of  Her  Majesty  by  the  Commissioners  for  the  Time  being  of 
Her  Majesty's  "Woods,   Forests,  and  Land   Revenues,  or   One  of 
them,  in  Writing  signed  by  them  or  him). 

36.  Before  Commencing  the  Construction  of  any  such  Work  as 
last  aforesaid,  or  of  any  Buoy  or  Sea  Mark  connected  therewith, 
except  in  Cases  of  Emergency  for  Repairs  to  any  Work  previously 
constructed  or  laid,  and  then  as  speedily  after  the  Commencement 
of  such  Work  as  may  be,  the  Company  shall  deposit  at  the  Office  of 
the  Board  of  Trade  a  Plan  thereof,  for  the  Approval  of  the  Board 
of  Trade.     The  Work  shall  not  be  constructed  otherwise  than  in 
accordance  with  such  Approval.  If  any  Work  is  constructed  contrary 
to  this  Provision,  the  Board  of  Trade  may,  at  the  Expense  of  the 
Company,  abate  and  remove  it,  or  any  Part  of  it,  and  restore  the 
Site  thereof  to  its  former  Condition. 

37.  Notwithstanding  anything  in  The  Merchant  Shipping  Act, 
1854,  or  any  Act  amending  the  same,  contained,  the  Company  may, 
in  or  about  the   Construction,  Maintenance,  or  Repair  of  any  such 
Work,  use  on  board  Ship  or  elsewhere  any  Light  or  Signal  allowed 
by  any  Regulation  to  be  made  in  that  Behalf  by  the  Board  of 
Trade. 

38.  If  any  such  Work,  Buoy,  or  Sea  Mark  is  abandoned,  or  suf- 
fered to  fall  into  Decay,  the  Board  of  Trade  may,  if  and  as  they 
think  fit,  at  the  Expense  of  the  Company,  either  repair  and  restore 
it  or  any  Part  of  it,  or  abate  and  remove  it  or  any  Part  of  it,  and 
restore  the  Site  thereof  to  its  former  Condition. 


ENGLAND.  441 

39.  The  Board  of  Trade  may  at  any  Time,  at  the  Expense  of 
the  Company,  cause  to  be  made  a  Survey  and  Examination  of  any 
such  Work,  Buoy,  or  Sea  Mark,  or  of  the  Site  thereof. 

40.  Whenever  the  Board  of  Trade,  under  the  Authority  of  this 
Act,  does,  in  relation  to  any  such  Work,  any  Act  or  Thing  which 
they  are  by  this  Act  authorized  to  do  at  the  Expense  of  the  Com- 
pany, the  Amount  of  such  Expense  shall  be  a  Debt  due  to  the 
Crown  from  the  Company,  and  shall  be  recoverable  as  such,  with 
Costs,  or  the  same  may  be  recovered,  with  Costs,  as  a  Penalty  is  or 
may  be  recoverable  from  the  Company. 

General  Obligations  and  Liabilities  of  Company  and  their  Servants. 

41.  Every  Telegraph  of  the  Company  shall   be   open  for  the 
Messages  of  all  Persons  alike,  without  Favour  or  Preference ;  but 
this   Provision  shall  not  prejudicially  affect  the  Operation  of  any 
Lease  or  Agreement  authorized  by  this  Act. 

42.  The  Company  shall  be  answerable  for  all  Accidents,  Damages, 
and  Injuries  happening  through  the  Act  or  Default  of  the  Company 
or  of  any  Person  in  their  Employment  by  reason  or  in  consequence 
of  any  of  the  Company's  Works,  and  shall  save  harmless  all  Bodies 
having  the  Control  of  Streets  or  public  Roads,  collectively  and  in- 
dividually, and  their  Officers  and  Servants,  from  all  Damages  and 
Costs  in  respect  of  such  Accidents  and  Injuries. 

43.  The  Company  shall  not  sell,  transfer,  or  lease  their  Under- 
taking or  Works,  or  any  Part  thereof,  to  any  other  Company  or  to 
any  Body  or  Person,   except  with  the  Consent  of  the  Board  of 
Trade  previously  obtained  for  such   Sale,  Transfer,  or  Lease ;  but 
this  Provision  shall  not,  as  far  as  it  relates  to  Leases,  apply  to  the 
Universal  Private  Telegraph  Company,  constituted  by  the   Special 
Act  of  1861  in  the  Schedule  to  this  Act  mentioned,  and  shall  not 
restrict  the  granting  of  any  Lease  by  any  Company  in  pursuance 
of  any  Agreement  in  that  Behalf  made  before  the  Twelfth  Day  of 
February  One  thousand  eight  hundred  and  sixty-three,  and  shall  not 
restrict  the  making  or  carrying  into  effect  by  any  Company  of  any 
Arrangement  with  any  Person  for  providing  any  Work  for  his  private 
Use  only. 


442  APPENDIX. 

44.  The  Company,  before  exercising  any  Power  for  the  Construc- 
tion of  Works  or  the  opening  or  breaking  up  of  Streets  or  public 
Roads  in  any  One  of  the  Three  Parts  of  the  United  Kingdom,  shall 
give  to  the  Registrar  of  Joint  Stock  Companies  acting  for  that  Part 
of  the  United  Kingdom  under  The  Companies  Act,  1862,  Notice  of 
the  Situation  of  some  Office  where  Notices  may  be  served  on  the 
Company  within  that  Part  of  the  United  Kingdom ;  and  the  Com- 
pany shall  from  Time  to  Time  give  to  such  Registrar  Notice  of  any 
Change  in  the  Situation  of  such  Office :    Every  such  Notice  shall  be 
recorded  by  the  Registrar,  and  the  Record  thereof  may  be  inspected 
from  Time  to  Time  by  any  Person :  The  Delivery  at  the  Office  of 
which  Notice  is  so  given  of  any  Notice,  Writ,  Summons,  or  other 
Document  addressed  to  the  Company  shall,  for  the  Purposes  of  this 
Act  and  all  other  Purposes,  be  deemed  good  service  on  the  Com- 
pany :  The  Company  shall,  on  giving  each  Notice  to  the  Registrar 
under  the  present  Section,  pay  such  Fee  as  is  Payable  under  the 
last-mentioned  Act  on  Registration  of  any  Document  by  that  Act 
required  or  authorized  to  be  registered,  other  than  a  Memorandum 
of  Association ;  and  every  Person  inspecting  the  Record  of  such 
Notice  with  the  Registrar  shall  pay  such  Fee  as  is  for  the  Time 
being  payable  under  the  last-mentioned  Act  for  Inspection  of  Docu- 
ments kept  by  the  Registrar  under  that  Act. 

45.  If  any  Person  in  the  Employment  of  the  Company  — 
Wilfully  or  negligently  omits  or  delays  to  transmit  or  deliver  any 

Message ; 
Or  by  any  wilful  or  negligent  Act  or  Omission  prevents  or  delays 

the  Transmission  or  Delivery  of  any  Message ; 
Or  improperly  divulges  to  any  Person  the  Purport  of  any  Mes- 
sage, — 

He  shall  for  every  such  Offence  be  liable  to  a  Penalty  not  exceed- 
ing Twenty  Pounds. 

46.  Nothing  in  this  Act,  and  nothing  in  any  future  Special  Act, 
except  so  far  -as  express  Provision  to  the  contrary  hereof  may  be 
thereby  made,  shall  relieve  the  Company  from  being  subject  to  any 
Restrictions,  Regulations,  or  Provisions  which   may  hereafter  be 
made  by  Act  of  Parliament  respecting  Telegraphs  or  Telegraph 
Companies  or  their  Charges. 


ENGLAND.  443 


Saving  as  to  Restrictions  on  and  Duties  of  existing  Companies. 

47.  Nothing  in  this  Act  shall  affect  any  of  the  Enactments  speci- 
fied in  the  Schedule  to  this  Act. 


Powers  of  Her  Majesty's  Government  over  Company. 

48.  If  One  of  Her  Majesty's  Principal  Secretaries  of  State,  or 
the  Board  of  Trade,  or  other  Department  of  Her  Majesty's  Gov- 
ernment, requires  the  Company  to  transmit  any  Message  on  Her 
Majesty's   Service,  such  Message  shall  (notwithstanding  anything 
herein-before  contained)  have  Priority  over  all  other  Messages  ;  and 
the  Company  shall  as  soon  as  reasonably  may  be  transmit  the  same, 
and  shall,  until  Transmission  thereof,  suspend  the  Transmission  of 
all  other  Messages. 

49.  On  the  Request  of  the  Board  of  Trade,  the  Company  shall 
from  Time  to  Time  place  and  shall  maintain  such  a  Telegraph  as 
the  Board  of  Trade  appoints,  to  be  for  the  exclusive  Use  of  Her 
Majesty,  and  to  be  applied  to  such  Purposes,  whether  for  the  im- 
mediate  Service  of  Her  Majesty,  or  otherwise,  as  Her  Majesty 
thinks  fit. 

50.  If  the  Company  refuses  or  neglects  to  place  a  Telegraph  in 
accordance  with  such  Request,  the  Board  of  Trade  may  cause  such 
a  Telegraph  to  be  placed  in  connexion  with  any  of  the  Company's 
Works,  by  such  Persons  and  in  such  Manner  as  the  Board  of  Trade 
thinks  fit,  and  for  that  Purpose  shall  have  and  may  exercise  all  the 
Powers  under  this  Act  or  otherwise  vested  in  the  Company  ;  sub- 
ject, nevertheless,  to  the  Restrictions  and  Provisions  under  this  Act 
or  otherwise  applicable  to  the  Company,  and  without  Prejudice  to 
the  Exercise  by  the  Company  of  the  Powers  under  this  Act  or 
otherwise  vested  in  them. 

51.  Where  the  Company  places  a  Telegraph,  in  pursuance  of  such 
Request  of  the  Board  of  Trade,  the  Commissioners  of  Her  Majes- 
ty's Treasury  shall  pay  to  the   Company,  as   Remuneration  for  the 
same,  out  of  Money  to  be  provided  by  Parliament  for  the  Purpose, 
such  Sum,  annual  or  in  gross,  or  both,  as  may  be  settled  between 
the  Board  of  Trade  and  the  Company  by  Agreement,  or,  in  case  of 


444  APPENDIX. 

Difference,  by  Arbitration,  such  Arbitration   to  be  conducted  as 
follows : 

(1.)  The  Board  of  Trade  and  the  Company  shall  each,  within 
Fourteen  Days  after  the  Delivery  by  one  to  the  other  of 
a  Demand  in  Writing  for  an  Arbitration,  nominate  an 
Arbitrator  : 

(2.)  The  Two  Arbitrators  nominated  shall,  before  entering  on  the 
Arbitration,  nominate  an  Umpire  : 

(3.)  If  either  Party  or  Arbitrator  makes  default  in  nominating 
an  Arbitrator  or  Umpire  within  Fourteen  Days  after  re- 
ceiving from  the  other  a  Demand  in  Writing  for  such 
Nomination,  the  Lord  Chief  Justice  of  Her  Majesty's 
Court  of  Common  Pleas  at  Westminster  may,  on  the 
Request  of  the  Board  of  Trade,  or  of  the  Company,  by 
Writing  under  his  Hand,  nominate  an  Arbitrator  or 
Umpire : 

(4.)  The  Arbitrators  shall  make  their  Award  within  Twenty- 
eight  Days  after  their  Nomination,  otherwise  the  Matter 
shall  be  left  to  be  determined  by  the  Umpire  : 

(5.)  The  Umpire  shall  make  his  Award  within  Twenty-eight 
Days  after  Notice  from  the  Arbitrators  or  One  of  them 
that  the  Matter  is  left  to  be  determined  by  him  ;  or,  on 
default,  a  new  Umpire  shall  be  appointed  as  nearly  as  may 
be  in  manner  aforesaid,  who  shall  make  his  Award  within 
the  like  Time,  or  on  default  be  superseded ;  and  so  toties 
quotics  : 

The  Award  of  the  Arbitrators  or  Umpire  shall  be  final  and  conclu- 
sive as  between  the  Board  of  Trade  and  the  Company. 

52.  Where,  in  the  Opinion  of  One  of  Her  Majesty's  Principal 
Secretaries  of  State,  an  Emergency  has  arisen  in  which  it  is  expe- 
dient for  the  Public  Service  that  Her  Majesty's  Government  should 
have  Control  over  the  Transmission  of  Messages  by  the  Company's 
Telegraphs,  the  Secretary  of  State,  by  Warrant  under  his  Hand, 
may  direct  and  cause  the  Company's  Works,  or  any  Part  thereof, 
to  be  taken  possession  of  in  the  Name  and  on  behalf  of  Her 
Majesty,  and  to  be  used  for  Her  Majesty's  Service,  and,  subject 
thereto,  for  such  ordinary  Service  as  may  seem  fit ;  or  may  direct 
and  authorize  such  Persons  as  he  thinks  fit  to  assume  the  Control  of 
the  Transmission  of  Messages  by  the  Company's  Telegraphs,  either 


ENGLAND.  445 

wholly  or  partly,  and  in  such  Manner  as  he  directs.  Any  such 
Warrant  shall  not  have  effect  for  a  longer  Time  than  one  Week 
from  the  issuing  thereof;  but  the  Secretary  of  State  may  issue  suc- 
cessive Warrants  from  Week  to  Week  as  long  as,  in  his  Opinion, 
such  Emergency  continues.  The  Commissioners  of  Her  Majesty's 
Treasury  shall  pay  to  the  Company,  as  Compensation  for  any  Loss 
of  Profit  sustained  by  the  Company  by  reason  of  the  Exercise  by 
the  Secretary  of  State  of  any  of  the  Powers  of  the  present  Sec- 
tion, out  of  Money  to  be  provided  by  Parliament  for  the  Purpose, 
such  Sum  as  may  be  settled  between  the  Secretary  of  State  and  the 
Company  by  Agreement,  or,  in  case  of  Difference,  by  Arbitration, 
—  such  Arbitration  to  be  conducted  in  manner  provided  in  the  last 
foregoing  Section,  the  Secretary  of  State  being  only  substituted 
for  the  Board  of  Trade. 

53.  Where  it  appears  to  the  Board  of  Trade  that  any  Provision 
of  this  Act  has  not  been  complied  with  on  the  Part  of  the  Com- 
pany, and  that  it  would  be  for  the  public  Advantage  that  Compli- 
ance therewith  should  be  enforced,  the  Board  of  Trade  may  certify 
accordingly  to  Her  Majesty's  Attorney  General  for  England  or  for 
Ireland,  or  to  the  Lord  Advocate  for  Scotland,  as  the  Case  may 
require ;  and  thereupon  the  Attorney  General  or  Lord  Advocate 
may,  by  such  Civil  or  Criminal  Proceeding  as  the  Case  may  require, 
enforce  Compliance  with  such  Provision,  by  the  Recovery  of  Penal- 
ties, or  otherwise  according  to  Law.  But  no  such  Certificate  shall 
be  made  by  the  Board  of  Trade  until  the  Expiration  of  Twenty- 
one  Days  after  they  have  given  Notice  to  the  Company  of  their  In- 
tention to  make  the  same.  This  Provision  shall  be  deemed  to  be 
cumulative,  and  to  be  without  Prejudice  to  any  other  Remedy  or 
Process  against  the  Company  on  the  Part  of  Her  Majesty  or  of  any 
Person  or  Body. 


446 


APPENDIX. 


SCHEDULE. 


Enactments  in  Special  Acts  of  existing  Companies  which  are  not 
to  be  affected  by  this  Act. 


Session  and 
Chapter  of  Act. 


Short  Title  of  Act. 


Enactments  to  which  Saying 
extends. 


16  &  17  Viet.  c.  clix.  - 


16  &  17  Viet.  c.  cciii. 


24  &  25  Viet.  c.  Ixi.  - 


24  &  25  Viet  c.  xcii.  - 


25  &  26  Viet.  c.  cxxxi. 


The  British  Electric 
Telegraph  Compa- 
ny's Act,  1853. 

The  Electric  Tele- 
graph Company's 
Act,  1853. 

The  Universal  Pri- 
vate Telegraph 
Company's  Act, 
1861. 

Bonelli's  Electric  Tele- 
graph Act,  1861. 


United  Kingdom 
Electric  Telegraph 
Act,  1862. 


Section  Forty-three  (relating  to 
Works  affecting  the  Thames). 


Section    Fifty-six    (relating    to 
Works  affecting  the  Thames). 


Section  Twenty-seven  (relating 
to  Works  affecting  the  Mersey 
Dock  Estate). 


Sections  Twenty-five,  Twenty- 
six,  Twenty-seven  (relating  to 
Works  affecting  the  Thames), 
and  Thirty-eight  and  Thirty- 
nine  (relating  to  Works  iiffect- 
ing  the  Mersey,  and  to  the  Mer- 
sey and  Irwell  Navigation). 

Sections  Fifty-three,  Fifty-four, 
Fifty-five  (relating  to  Works 
affecting  the  Thames),  Fifty- 
seven,  Fifty-eight  (relating  to 
Works  affecting  the  Mersey, 
and  to  the  Mersey  and  Irwell 
Navigation),  Seventv-four  (re- 
lating to  a  Sale,  TYansfer,  or 
Lease),  and  Seventy-six  (rela- 
ting to  Works  in  Scotland). 


CANADA.  447 


B. 
CANADA. 

CONSOLIDATED   STATUTES.    CAP.  LXVH. 
AN  ACT  RESPECTING  ELECTRIC  TELEGRAPH  COMPANIES. 

Organization, 

1.  Any  number  of  persons,  not  less  than  three,  may  associate  for 
the  purpose  of  constructing  telegraph  lines,  with  branches,  from  and 
to  any  point  in  the  Province,  upon  the  terms  and  conditions,  and 
subject  to  the  liabilities,  prescribed  in  this  act.    16  Viet.  c.  10,  sec.  1. 

2.  They  shall,  under  their  hands  and  seals,  make  a  certificate 
specifying  the  name  of  the  association,  which  is  to  be  used  in  its 
dealings,  and  by  which  it  may  sue  and  be  sued ;  and  the  line  or  lines 
of  telegraph  to  be  constructed  by  them,  and  the  routes  by  which 
they  are  to  pass. 

Its  capital  stock,  and  the  number  of  shares  into  which  it  is  di- 
vided, and  any  provision  made  for  increasing  the  same ;  the  names 
of  the  shareholders,  and  the  amount  of  stock  held  by  each  ;  the  pe- 
riod at  which  it  commenced,  and  is  to  terminate  ;  and  a  copy  of  the 
articles  of  association,  —  shall  also  be  set  forth  in  the  certificate.  1 6 
Viet.  c.  10,  sec.  2. 

3.  This  certificate  shall  be  acknowledged  before  a  notary,  and  the 
original,  or  a  copy  certified  by  the  notary,  must  be  filed  in  the  office 
of  the  Provincial  Secretary.     Ibid. 

4.  Upon  complying  with  the  above  provisions,   the   association 
shall  be  a  body  corporate,  by  the  name  designated  in  the  certificate. 
Ibid.  sec.  3. 

Evidence. 

5.  A  copy  of  this  certificate,  duly  certified  by  the  Provincial 
Secretary,  may  be  used  as  evidence  in  all  courts  and  places  for  and 
against  the  company.     16  Viet.  c.  10,  sec.  3. 


448  APPENDIX. 


Powers  and  Restrictions. 

6.  Every  such  association  shall  have  power  to  purchase,  hold,  and 
convey  only  such  real  estate  as  may  be  necessary  for  the  convenient 
transaction  of  the  business,  and  for  effectually  conducting  its  opera- 
tions. 

7.  They  may  appoint  directors,  officers,  and  agents,  and   make 
such  prudential  rules,  regulations,  and  by-laws,  as  may  be  necessary, 
not  inconsistent  with  the  laws  of  the  Province.    16  Viet.  c.  10,  sec.  4. 

8.  They  may  construct  their  lines  upon  any  lands  purchased  by 
them,  or  the  right  to  carry  their  lines  over  which  has  been  conceded 
to  them  by  the  person  having  the  right  to  make  such  concession ; 
and  along  the    public   roads   or   highways,  or   across   the   waters 
within  the  Province,  by  the  erection  of  the  necessary  fixtures,  in- 
cluding posts,  piers,  and  abutments :  provided  the  same  are  so  con- 
structed as  not  to  incommode  the  public  use,  or  to  impede  the  free 
access  to  any  house  or  other  building  erected  in  the  vicinity  of  the 
same,  or  injuriously  to  interrupt  the  navigation  of  such  waters.     16 
Viet.  c.  10,  sec.  5. 

9.  But  they  shall  not  build  bridges  over  navigable  watera. '  16 
Viet.  c.  10,  sec.  5. 

10.  They  may,  by  their  articles  of  association,  provide  for  an  in- 
crease of  their  capital,  and  number  of  associates.     16  Viet.  c.  10, 
sec.  7. 

11.  They  shall  not  contract   debt   exceeding  half  their   capital 
stock.     16  Viet.  c.  10,  sec.  8. 

12.  All  evidence  of  debt  they  issue,  shall  be  signed  and  issued  by 
the  President  and  Treasurer.     16  Viet.  c.  10,  sec.  8. 

Other  Companies. 

13.  Any  telegraph  company  or  association  organized  on  or  before 
the  10th  Nov.  1852,  on  filing  in  the  office  of  the  Provincial  Secreta- 
ry a  certificate  authorized  by  a  resolution  of  its  Board  of  Directors, 
signed  and  certified  by  its  Secretary,  containing  the  particulars  here- 
inbefore required  in  like  cases,  and  signifying  its  acceptance  of  this 
act,  may  become  incorporated  under  this  act.     16  Viet.  c.  10,  sec.  9. 

Regulations  Respecting  Messages. 

14.  Except  in  the  cases  provided  for  in  next  section,  the  company 


CANADA.  449 

should  transmit  all  despatches  in  the  order  in  which  they  are  received, 
under  a  penalty  of  not  less  than  twenty,  nor  exceeding  one  hundred 
dollars,  with  costs  of  suit,  to  be  recovered  by  the  person  whose  de- 
spatch has  been  postponed  out  of  its  order. 

15.  Messages  in  relation  to  the  administration  of  justice,  arrest 
of  criminals,  the  discovery  or  prevention  of  crime,  and  government 
messages,  shall  be  transmitted  in  preference  to  all  other  messages, 
if  required  by  persons  connected  with  the  administration  of  justice, 
or  authorized  by  the  Provincial  Secretary.     16  .Viet.  c.  10,  sec.  10. 

16.  If  the  operator  or  employes  of  the   company  divulge   the 
contents  of  private  despatches,  it  shall  be  a  misdemeanor,  punish- 
able by  fine  not  exceeding  one  hundred  dollars,  or  three  months'  im- 
prisonment, or  both,  in  the  discretion  of  the  Court.     16  Viet.  c.  10, 
sec.  11. 

Governmental  Supremacy. 

17.  Her  Majesty  may  at  any  time,  and  for  any  length  of  time 
assume  and  retain  possession  of  telegraph  lines  and  all  things  neces- 
sary to  the  sufficient  working  thereof;  may  require  the  exclusive 
service  of  the  operators  and  employes ;  and  during  such  time  the 
operators  and  employes  shall  faithfully  obey  such  ordei'S,  and  trans- 
mit and  receive  such  messages,  as  may  be  required  by  any  duly  au- 
thorized officer  of  the  Provincial  Government,  under  a  penalty  not 
exceeding  one  hundred  dollars  for  such  refusal  or  neglect,  to  be  re- 
covered by  the  crown  for  the  public  use  of  the  Province,  with  costs, 
in  any  way  in  which  debts  of  like  amount  are  recoverable  by  the 
crown.     1 6  Viet.  c.  10,  sec.  1 2. 

18.  At  any  time  after  the  commencement  of  a   telegraph   line 
under  this  act,  the  government  may,  after  two  months'  notice  to  the 
company,  assume  the  possession    and    property  of  the    same,  and 
thereupon  such  line,  and  all  the  property  real  and  personal  essential 
to  the  working  thereof,  and  all  the  rights  and  privileges  of  the  com- 
pany as  regards  such  line,  shall  be  vested  in  the  crown.     16  Viet.  c. 
10,  sec.  13. 

19.  In  case  of  difference  between  the  company  and  those  who  act 
for  the  crown,  as  to  the  compensation  for  the  telegraph  line  and 
appurtenances,  taken  under  sec.  18, —  or,  for  the  temporary  exclusive 
use,  under  sec.  17,  —  such  difference  shall  be  referred  to  three  arbi- 
trators, one  appointed  by  the  crown,  one  by  the  company,  and  the 

29 


450  APPENDIX. 

third  by  these  two  appointed  arbitrators.  The  award  of  any  two  of 
them  shall  be  final.  If  the  company  fail  or  refuse  to  appoint,  or  if 
the  two  arbitrators  cannot  agree  upon  the  third,  such  arbitrator 
shall  be  appointed  by  any  two  Judges  of  the  Queen's  Bench  or 
Common  Pleas,  in  Upper  Canada,  or  of  the  Superior  Court  in 
Lower  Canada,  on  application  on  the  part  of  the  crown.  16  Viet. 
c.  10,  sec.  14. 

20.  Any  municipal  corporation  in    the    Province,  or  joint-stock 
company  incorporated  by  Act  of  the  Parliament  of  this  Province, 
may  be  a  stockholder  in  any  company  formed  under  this  act,  and 
pay  the  stock  out  of  municipal  or  other  funds  not  otherwise  special- 
ly appropriated,  and  may  levy  money  by  rate  to  pay  such  stock  sub- 
scription ;  and  shall  have  such  rights  as  a  member  of  the  company, 
and  shall  vote  upon  its  stock  in  such  manner,  and  through  such  per- 
son or  officer,  as  prescribed  by  the  articles  of  association.     16  Viet. 
c.  10,  sec.  15. 

21.  The  wilful    and   malicious    cutting,  breaking,  molesting,  in- 
juring, or  destroying  any  instrument,  cap,  wire,  post,  line,  pier,  or 
abutment,  or  material  or  property  belonging  thereto,  or  any  other 
erection  used  for  or  by  any  line  in  operation  under  any  act  in  force 
herein,  and  the  malicious,  wilful  obstruction  of  or  disturbance  of 
the  working  of  any  line  shall  be  a  misdemeanor,  punishable  by  fine 
not   exceeding   forty  dollars,  or   imprisonment   not  exceeding  one 
month,  or  both,  at  the  discretion  of  the  Court.     16  Viet.  c.  10,  sec. 
6-13;  14  Viet.  c.  31. 

22.  The  jurisdiction  over  all  offences  against  this  act  shall  be  in 
any   Justice  of  the    Peace   in  any  parish,  village,  city,  town,  or 
county  where  the  offence  has  been  committed,  or  the  offender  found ; 
and  the  proceedings  therein  shall  be  summary. 

23.  The  fine  imposed  with  costs  may  be  collected  by  Warrant  of 
Distress  and  sale  of  the  goods  and  chattels  of  the  offender ;  and 
whether  imprisonment  be  or  be  not  part  of  the  sentence,  the  offend- 
er may  (in  the  discretion  of  the  magistrate)  be  imprisoned  for  not 
exceeding  thirty  days,  in  addition  to,  and  after  the  expiration  of, 
any  other  imprisonment  making  part  of  his  sentence,  unless  such  fine 
ai.d  costs  be  sooner  paid;  and  all  such  fines,  when  collected,  shall 
belong  to  the  party  aggrieved  by  and  complaining  of  ihe  offence. 
13  &  14  Viet.  c.  31. 


UNITED    STATES.  451 

c. 

NEW  BRUNSWICK. 

Whoever  shall  maliciously  cut,  injure,  or  destroy  the  posts,  wires, 
or  other  apparatus  or  property  connected  with  or  belonging  to  any 
line  of  electric  telegraph  now  or  hereafter  to  be  established,  shall 
be  guilty  of  felony,  and  be  imprisoned  for  any  term  not  exceeding 
seven  years.  Revision  of  1854,  c.  153,  sec.  7. 

D. 

UNITED   STATES. 

• 

An  Act  to  expedite  Telegraphic  Communication  for  the  uses  of 
the  Government  in  its  Foreign  Intercourse.  (Approved  March  3, 
1857.) 

That  the  Secretary  of  State,  in  the  discretion  and  under  the  di- 
rection of  the  President,  may  contract  with  any  competent  person 
or  association,  for  the  aid  of  the  United  States,  by  furnishing  not 
exceeding  two  ships  in  laying  down  a  submarine  cable,  to  connect 
existing  telegraphs  between  the  coasts  of  Newfoundland  and  Ire- 
land ;  and  for  its  use,  when  established  by  the  United  States,  on  such 
terms  and  conditions  as  to  the  President  may  seem  just  and  reason- 
able, not  exceeding  seventy  thousand  dollars  per  annum,  until  the 
net  profits  of  such  person  or  association  shall  be  equal  to  a  dividend 
of  six  per  cent  per  annum ;  and  then  not  exceeding  fifty  thousand 
dollars  per  annum  for  twenty-five  years  :  provided  the  Government 
of  Great  Britain  make  a  like  contract. 

•  "  And  provided,  that  the  tariff  of  prices  for  the  use  of  such  sub- 
marine communication  by  the  public  shall  be  fixed  by  the  Secretary 
of  the  Treasury  of  the  United  States  and  the  Government  of  Great 
Britain,  or  its  authorized  agent. 

"  Provided  further,  that  the  United  States,  and  the  citizens  thereof, 
shall  enjoy  the  use  of  said  submarine  telegraph  communication  for 
all  time,  on  the  same  terms  and  conditions  which  shall  be  stipulated 
in  favor  of  the  Government  of  Great  Britain,  and  the  subjects 


452  APPENDIX. 

thereof,  recognizing  equality  of  rights  amongst  the  citizens  of  the 
United  States,  in  the  use  of  said  submarine  communication,  and  the 
lines  of  telegraph  which  may  at  any  time  connect  with  the  same,  at 
its  terminus  on  the  coast  of  Newfoundland,  in  the  United  States, 
in  any  contract  to  be  entered  into  by  such  person,  persons,  or  associ- 
ation, with  that  government. 

'•  Provided  farther,  that  the  contract  to  be  made  by  the  British 
Government  shall  not  be  different  from  that  already  proposed  by 
that  government  to  the  New  York,  Newfoundland,  and  London 
Telegraph  Company,  except  such  provisions  as  may  be  necessary  to 
secure  to  each  government  the  transmission  of  its  own  messages  by 
its  own  agents. 

'•'•And  provided  further,  that  it  shall  be  in  the  power  of  Congress, 
after  ten' years,  to  terminate  said  contract,  upon  giving  one  year's 
notice  to  the  parties  to  such  contract." 

The  "  act  to  authorize  the  President  of  the  United  States  in  cer- 
tain cases  to  take  possession  of  railroad  and  telegraph  lines,"  etc.,  — 
approved  Jan.  31,  1862,  —  by  the  5th  section  provides  that  it  shall 
not  be  in  force  "  any  longer  than  is  necessary  for  the  suppression  of 
this  rebellion." 

[Act  of  July  1,  1864,  c.  119.] 

An  Act  to  encourage  and  facilitate  Telegraphic  Communication  be- 
tween the  Eastern  and  Western  Continents. 

The  preamble  recites  that,  the  Governments  of  Russia  and  Great 
Britain  having  granted  to  Perry  McDonough  Collins,  a  citi/i-n  of 
the  United  States,  the  riizht  to  construct  telegraph  lines  through 
their  respective  territories  from  the  mouth  of  the  Amour  Ri\ cr  in 
Asiatic  Russia  by  way  of  Behring's  Strait,  and  along  the  Pacific 
coast  to  the  northern  boundary  of  the  United  States,  with  a  view  of 
thereby  uniting  the  telegraph  systrms  of  both  continents,  and  of 
promoting  international  and  commercial  intercourse,  and  that  Russia, 
in  furtherance  of  that  object,  is  now  constructing  a  line  of  telegraph 
through  its  Asiatic  territory  to  unite  at  the  Amour  River  with  the 
line  projected  by  said  Collins,  — 

It  is  provided  that  said  Collins  and  his  associates  may  construct  a 
telegraph  from  any  point  on  the  line  of  the  Pacific  Telegraph, 
northerly,  through  any  of  the  territories  of  the  United  States  to  the 


UNITED    STATES.  453 

boundaries  of  British  America,  with  branch  lines  to  the  mining  dis- 
tricts and  settlements  :  they  shall  have  the  permanent  right  of  way 
over  unappropriated  public  lands,  and  the  right  to  take  timber,  &c., 
for  construction  purposes  ;  the  use  of  public  lands  not  sold,  reserved, 
pre-empted,  nor  occupied  by  homestead  settlers,  as  may  be  necessary 
for  stations,  not  exceeding  forty  acres  for  each  fifteen  miles.  The 
branch  lines  to  the  mining  districts  must  be  completed  in  five  years 
from  the  approval  of  this  act. 

Sec.  2  authorizes  the  Secretary  of  the  Navy  to  detail  one  steam 
or  sailing  vessel,  in  his  discretion,  to  assist  in  surveys  and  soundings, 
laying  cable,  etc.,  along  the  Pacific  coast  both  of  America  and  Asia.1 

Sec.  3  provides  that  the  United  States  shall  have  priority  in  the 
use  of  the  lines  within  its  territory ;  and  to  connect  the  lines  with 
any  military  posts  of  the  United  States,  and  to  use  the  same  for 
government  purposes.  The  Secretary  of  War  is  authorized  to  di- 
rect commanders  of  military  districts  in  the  territory  through  which 
the  line  passes,  to  use  any  available  force  at  their  command  to  pro- 
tect the  same. 

Subject  to  the  priority  of  the  government,  the  lines  shall  be  open 
at  all  times  for  the  use  of  the  public,  and  despatches  shall  be  sent 
in  the  order  of  their  reception,  etc. 

Sec.  4  provides  that  in  order  to  secure  to  the  government  at  all 
times,  but  particularly  in  time  of  war,  the  use  of  the  line  for  diplo- 
matic, naval,  military,  postal,  commercial,  and  other  purposes,  Con- 
gress may  at  any  time  add  to,  alter,  amend,  or  repeal  this  act. 

Sec.  5  provides  that  the  rate  of  charges  shall  not  exceed  the 
average  usual  rates  in  Europe  and  America  for  the  same  service,  or 
such  rates  as  shall  be  established  by  a  convention  between  the  United 
States,  Russia,  and  Great  Britain :  and  provided  that  no  contract 
shall  be  made  with  any  newspaper,  or  newspaper  association,  for 
transmissions  upon  different  terms  than  are  enjoyed  by  all  other 
newspaper  associations. 

STAMP   DUTIES. 

By  the  Act  of  July  1,  1862,  c.  119,  sec.  94,  a  stamp  duty  is  im- 
posed upon  messages,  to  be  paid  by  the  sender,  according  to  the  rate 
of  charges  designated  in  the  schedule  annexed  to  the  act,  as  follows : 

1  The  Act  of  Feb.  26,  1866,  directs  the  Secretary  of  the  Navy  to  detail  one 
vessel  from  the  squadron  of  the  Pacific  station  for  this  purpose. 


454  APPENDIX. 

"  Any  despatch,  or  message,  the  charge  for  which,  for  the  first  ten 
words  does  not  exceed  twenty  cents,  one  cent.  Where  the  charge 
for  the  first  ten  words  exceeds  twenty  cents,  three  cents." 

Sec.  104  of  this  act  provides  that  "on  and  after  the  date  on  which 
this  act  shall  take  effect,  no  telegraph  company,  nor  its  agent  nor 
employe,  shall  receive  from  any  person,  or  transmit  to  any  person, 
any  despatch  or  message,  without  an  adhesive  stamp  denoting  the 
duty  imposed  by  this  act  being  affixed  to  a  copy  thereof,  or  having 
the  same  stamped  thereupon ;  and  in  default  thereof  shall  incur  a 
penalty  of  ten  dollars :  provided,  that  only  one  stamp  shall  be  re- 
quired, whether  sent  through  one  or  more  companies.1 

1  Messages  transmitted  by  telegraph  and  railroad  companies  over  their  own 
wires,  on  their  own  business,  for  which  they  receive  no  pay,  are  not  taxable. 

Telegraph  despatches  must  be  stamped,  and  the  stamp  cancelled,  before  the 
same  are  received  for  transmission. 

Telegraph  despatches  or  messages  sent  from  an  office  without  the  United 
States  to  an  office  within  the  United  States  are  not  subject  to  stamp  tax, 
provided  the  message  be  transmitted  direct  to  its  final  destination. 

If  received  at  an  office  within  the  United  States,  and  repeated  to  another 
office  within  or  without  the  United  States,  the  stamp  must  be  affixed  and  can- 
celled where  the  message  is  repeated. 

It  is  illegal  for  telegraph  operators  to  receive  unstamped  messages  from  the 
writers.  It  is  the  duty  of  the  writer  to  affix  and  cancel  the  stamp,  and  the 
company  or  its  agent  receiving  and  transmitting  an  unstamped  message  is 
liable  to  a  penalty  of  ten  dollars.  (Statute  of  1862,  sec.  104.) 
From  Boittwell's  Direct  and  Excise  Tax  System  of  the  United  States,  1863.  De- 
cisions Nos.  30,  44. 

Telegraph  messages  forwarded  free  of  charge,  by  railroad  or  express  com- 
panies, or  which  are  paid  for  in  kind,  must  have  stamps  attached  to  them. 

Messages  forwarded  in  the  same  manner  for  corporations  or  individuals, 
treated  as  free  messages  in  their  transmission,  but  paid  for  quarterly  or  yearly 
must  have  stamps  attached. 

Messages  for  a  railroad  company  require  to  be  stamped  when  going  over  a 
line  which  they  do  not  own  and  work  exclusively  for  railroad  purposes, 
although  the  stock  of  the  telegraph  line  over  which  their  messages  pass  may 
be  partly  or  chiefly  owned  by  the  railroad  company. 

Only  such  messages  as  are  covered  by  the  following,  are  entitled  to  exemp- 
tion as  "  free  messages  :  "  — 

"  Messages  transmitted  by  telegraph  and  railroad  companies  over  their  own 
wires,  on  their  own  business,  for  which  they  receive  no  pay,  do  not  require 
stamps."  (Ibid.,  Rulings,  No.  269.) 

A  receipt  for  telegram  is  not  subject  to  stamp  duty.  (BoutweU  Tax-Pay- 
er's Manual,186o,  Rulings,  No.  245.) 


UNITED    STATES.  455 


INCOME  TAX. 

By  Act  June  30,  1864,  sec.  107,  any  person,  firm,  company, 
or  corporation,  owning  or  possessing,  or  having  the  care  or  manage- 
ment of,  any  telegraph  line,  by  which  telegraphic  despatches  or 
messages  are  received  or  transmitted,  shall  be  subject  to  and  pay  a 
duty  of  five  per  centum  on  the  gross  amount  of  all  receipts  of  such 
person,  firm,  company,  or  corporation. 

Sec.  109  requires  them,  within  twenty  days  after  the  expiration 
of  each  mouth,  to  make  a  list  or  return  in  duplicate  to  the  Assistant 
Assessor  of  the  District,  stating  the  gross  amount  of  their  receipts 
respectively,  for  the  month  next  preceding,  to  be  verified  by  oath  in 
the  manner  to  be  prescribed  by  the  Commissioner  of  Internal  Rev- 
enue ;  and  shall  also  pay  the  Assessor  the  full  amount  of  duties 
which  have  accrued  in  such  receipts  for  the  month  aforesaid. 

In  case  of  failure  to  make  such  return  for  the  space  of  ten  days 
after  the  return  should  have  been  made,  the  Assessor  or  Assistant 
Assessor  shall  estimate  the  amount  received,  and  the  duties  payable 
thereon,  and  shall  add  thereto  ten  per  centum,  as  provided  in  this 
act  in  relation  to  other  cases  of  delinquency  to  make  returns  ;  and 
the  books  of  the  person,  firm,  company,  etc.,  shall  be  subject  to  the 
inspection  of  said  officer,  for  the  purpose  of  ascertaining  the  correct- 
ness of  such  return. 

In  case  of  neglect  or  refusal  to  pay  the  duties,  with  the  additions 
above  mentioned,  when  the  same  have  been  ascertained,  for  the 
space  of  ten  days  after  the  same  shall  have  been  payable,  ten  per 
centum  on  the  amount  of  such  duties  and  additions  shall  be  collected 
from  the  party ;  and,  in  case  of  attempt  knowingly  to  evade  the 
payment  of  such  duty,  the  party  shall  be  liable  to  a  penalty  of  one 
thousand  dollars  for  every  such  attempt,  to  be  recovered  as  provided 
in  this  act  for  the  recovery  of  penalties.  And  all  provisions  in  this 
act,  in  relation  to  collections  by  distraint,  not  incompatible  here- 
with, shall  apply  to  this  section.1 

1  As  telegraph  companies  or  corporations  are  not  authorized  by  law,  to 
withhold  and  pay  to  government  any  tax  upon  interest  paid,  or  dividend  de- 
clared by  them,  all  income  of  individuals  derived  from  these  sources  is  liable 
to  income  tax.  — Boutwell's  Direct  and  Excise  Tax  System  of  the  United  States, 
1863,  Decisions,  No.  110. 


456  APPENDIX. 


[Vol.  14.     Statutes  at  Large,  221.] 

An  Act  to  aid  in  the  construction  of  telegraph  lines,  and  to 
secure  to  the  government  the  use  of  the  same  for  postal,  military, 
and  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  any  telegraph 
company  now  organized,  or  which  may  hereafter  be  organized,  under 
the  laws  of  any  State  in  this  Union,  shall  have  the  right  to  con- 
struct, maintain,  and  operate  lines  of  telegraph  through  and  over 
any  portion  of  the  public  domain  of  the  United  States,  over  and 
along  any  of  the  military  or  post  roads  of  the  United  States  which 
have  been  or  may  hereafter  be  declared  such  by  act  of  Congress, 
and  over,  under,  or  across  the  navigable  streams  or  waters  of  the 
United  States :  Provided,  That  such  lines  of  telegraph  shall  be  so 
constructed  and  maintained  as  not  to  obstruct  the  navigation  of  such 
streams  and  waters,  or  interfere  with  the  ordinary  travel  on  such 
military  or  post  roads.  And  any  of  said  companies  shall  have  the 
right  to  take  and  use  from  such  public  lands  the  necessary  stone, 
timber,  and  other  materials  for  its  posts,  piers,  stations,  and  other 
needful  uses  in  the  construction,  maintenance,  and  operation  of  said 
lines  of  telegraph,  and  may  pre-empt  and  use  such  portion  of  the 
unoccupied  public  lands  subject  to  pre-emption  through  which  its 
said  lines  of  telegraph  may  be  located  as  may  be  necessary  for  its 
stations,  not  exceeding  forty  acres  for  each  station  ;  but  such  stations 
shall  not  be  within  fifteen  miles  of  each  other. 

SEC.  2.  And  be  it  further  enacted,  That  telegraphic  communica- 
tions between  the  several  departments  of  the  Government  of  the 
United  States  and  their  officers  and  agents  shall,  in  their  transmis- 
sion over  the  lines  of  any  of  said  companies,  have  priority  over  all 
other  business,  and  shall  be  sent  at  rates  to  be  annually  fixed  by  the 
Postmaster-General. 

SEC.  3.  And  be  it  further  enacted,  That  the  rights  and  privileges 
hereby  granted  shall  not  be  transferred  by  any  company  acting 
under  this  act  to  any  other  corporation,  association,  or  person : 
Provided,  however,  That  the  United  States  may  at  any  time  after 
the  expiration  of  five  years  from  the  date  of  the  passage  of  this  act, 
for  postal,  military,  or  other  purposes,  purchase  all  the  telegraph 
lines,  property,  and  effects  of  any  or  all  of  said  companies  at  an  ap- 


ALABAMA.  457 

praised  value,  to  be  ascertained  by  five  competent,  disinterested 
persons,  two  of  whom  shall  be  selected  by  the  Postmaster-General 
of  the  United  States,  two  by  the  company  interested,  and  one  by  the 
four  so  previously  selected. 

SEC.  4.  And  be  it  further  enacted,  That  before  any  telegraph 
company  shall  exercise  any  of  the  powers  or  privileges  conferred  by 
this  act,  such  company  shall  file  their  written  acceptance  with  the 
Postmaster-General,  of  the  restrictions  aiid  obligations  required  by 
this  act. 

Approved  July  24,  1866. 


D. 
ALABAMA. 

By  the  Act  of  February  10,  1852,  sec.  1,  it  is  made  the  duty  of 
telegraph  companies  at  every  point  where  its  wires  cross  any  private 
or  public  road,  to  erect  substantial,  durable,  and  permanent  posts  or 
piers,  to  prevent  the  falling  of  the  wires  so  as  to  interfere  with  the 
travel  of  such  road.  And  in  case  of  failure  so  to  do,  and  interference 
with  travel  by  the  falling  of  the  wires,  it  shall  be  the  duty  of  any 
Justice  of  the  Peace  of  the  county,  upon  complaint  made,  to  issue 
notice  to  any  officer  or  agent  of  the  company,  to  be  found  within  the 
county,  to  appear  before  him ;  the  notice  to  be  not  less  than  ten 
days.  And  on  proof  that  the  wires  are  down,  or  have  been  down, 
for  one  day,  a  fine  of  not  less  than  ten  nor  more  than  fifty  dollars 
shall  be  entered,  for  every  day  the  wires  are  permitted  to  remain 
down. 

SEC.  2.  If  no  officer  or  agent  is  found  in  the  county,  the  notices 
to  be  posted  at  two  or  more  places  near  the  line  of  telegraph,  in  the 
neighborhood  of  where  the  wires  have  fallen,  citing  the  company 
for  five  days  to  appear  before  a  Justice  of  the  Peace ;  if  the  com- 
pany do  not  defend,  fine  may  be  entered  by  default.  And  if  the 
company  fail  or  refuse  for  sixty  days  to  pay  any  fine  imposed  by 
this  act,  the  telegraph  line  shall  be  deemed  a  public  nuisance,  and 
subject^to  be  abated  by  the  Circuit  Court  of  the  county  in  Avhich 
the  wires  shall  be  permitted  to  continue  down,  in  the  same  manner 
as  nuisances  are  by  law  abated. 


458  APPENDIX. 


PENAL  CODE  OF  ALABAMA. 
SEC.  194.  —  Injuring  telegraph  line  or  post. 

Any  person  who  wilfully  cuts,  pulls  down,  destroys,  or  iu  any 
manner  injures,  any  telegraph  line  or  any  post,  or  any  part  thereof, 
must,  on  conviction,  be  fined  not  less  than  fifty  nor  more  than  five 
hundred  dollars ;  and  may  also  be  imprisoned  iu  the  county  jail,  or 
sentenced  to  hard  labor  for  the  county,  for  not  more  than  six 
months. 

E. 
ARKANSAS. 

There  are  no  general  provisions  in  relation  to  telegraphs,  or  tele- 
graph companies,  in  this  State. 

F. 

CALIFORNIA. 

By  Act  of  April  22,  1850,  any  number  of  persons  may  associate 
for  the  purpose  of  constructing  and  operating  telegraph  lines.  They 
shall,  under  their  hands  and  seal,  make  a  certificate,  specifying  the 
name  of  the  association ;  the  general  route  of  their  line,  designat- 
ing the  points  to  be  connected ;  the  capital  stock,  and  the  number 
of  shares  into  which  it  is  divided ;  names  and  residences  of  stock- 
holders, and  the  number  of  shares  held  by  each ;  and  the  period  at 
which  the  association  shall  commence  and  terminate.  This  certifi- 
cate shall  be  proved  or  acknowledged  and  recorded,  and  a  copy  filed 
in  office  of  Secretary  of  State. 

They  shall  thereupon  be  a  corporation,  with  the  name  selected 
in  the  certificate;  and  a  certified  copy  of  this  certificate  shall  be 
evidence  for  and  against  the  corporation. 

They  shall  have  power  to  purchase,  hold,  and  convey  only  such 
real  estate  as  is  necessary  to  the  transaction  of  business,  and  effec- 
tually carrying  on  its  operations.  They  may  appoint  directors, 
officers,  etc.,  and  make  reasonable  regulations  and  by-laws. 

They  may  construct  their  lines  along  the  highways  and  across  the 
waters  of  the  State ;  may  appropriate  growing  trees  to  place  their 


CALIFORNIA.  459 

wires  upon ;  but  must  not  interfere  with  travel,  nor  interrupt  navi- 
gation ;  nor  shall  they  construct  any  bridge  over  navigable  waters. 
(Amended  April  2,  1857.) 

The  County  Court  of  the  county  where  the  lands  are,  shall  ap- 
point three  commissioners  to  appraise  the  damages  sustained  by  the 
owner.  Notice  of  the  application  for  the  appointment  of  the  com- 
missioners must  be  served  on  the  president  or  one  of  the  directors 
of  the  company. 

A  majority  of  the  commissioners  may  make  the  appraisal.  Dupli- 
cates of  the  appraisements  shall  be  made  out ;  one  copy  delivered  to 
the  applicant,  and  one  to  the  president  or  other  officer  of  the  asso- 
ciation, on  demand. 

If  any  damage  be  adjudged  to  the  applicant,  the  association  shall 
pay  it,  with  the  costs  of  appraisement. 

The  applicant  shall  not  be  entitled  to  damages,  unless  he  make 
his  application  within  three  months  after  the  erection  of  the  lines. 

It  is  a  misdemeanor,  punishable  with  fine  not  exceeding  five  hun- 
dred dollars,  or  imprisonment  in  the  county  jail  not  exceeding  one 
year,  or  both,  at  the  discretion  of  the  Court,  to  intentionally  injure, 
molest,  or  destroy  any  of  the  lines  or  other  property  of  the  asso- 
ciation. 

The  articles  of  association  may  provide  for  an  increase  of  capital, 
and  the  number  of  the  association. 

They  shall  receive  despatches  from  and  for  other  telegraph  lines 
and  individuals,  and,  on  payment  of  their  usual  charges,  shall  trans- 
mit the  same  with  impartiality  and  good  faith ;  they  shall  not  dis- 
close the  communication ;  and  for  a  violation  of  either  of  these 
requirements,  shall  be  liable  to  a  penalty  of  five  hundred  dollars, 
to  be  recovered,  with  costs,  in  the  name  and  for  the  benefit  of  the 
sender. 

They  shall  send  messages  in  the  order  in  which  they  are  received, 
under  penalty  of  one  hundred  dollars  for  failure,  to  be  recovered  as 
the  above.  Provided,  that  arrangements  may  be  made  with  proprie- 
tors or  publishers  of  newspapers  for  the  transmission,  for  the  purpose 
of  publication,  of  intelligence  of  general  and  public  interest,  out  of 
its  order. 

The  Act  of  April  2,  1857,  provides  that  the  wilful  and  malicious 
injury  or  destruction  of  any  subaqueous  telegraph  cable  shall  be 
punishable  with  fine  not  less  than  five  hundred  nor  more  than  ten 
thousand  dollars,  to  which  may  be  added  imprisonment  in  State 


460  APPENDIX. 

prison,  for  any  term  not  less  than  one  year  nor  more  than  five ; 
and  the  offending  party  shall  also  be  liable  for  damages  for  the  in- 
jury or  destruction  of  the  same.  And  any  vessel  which,  by  dragging 
its  anchor,  or  otherwise,  injures  or  destroys  such  subaqueous  cable, 
upon  proof  of  the  want  of  due  care,  shall  be  held  responsible  for  all 
damages  incurred,  and  the  person  having  control  be  subject  to  the 
fine  and  imprisonment  above  provided. 

Before  the  telegraph  company  or  association  shall  have  the  benefit 
of  these  provisions  in  relation  to  subaqueous  cables,  they  shall  caii^i- 
to  be  erected,  at  the  commencement  and  termination  of  the  cable,  on 
the  shores  respectively,  suitable  monuments,  indicating  the  place  of 
the  cable ;  and  shall  publish,  for  one  month,  in  a  newspaper  having 
a  circulation  on  or  about  the  waters  crossed  by  the  cable,  a  descrip- 
of  these  monuments,  and  the  course  and  termination  of  the  cable ; 
and,  to  entitle  them  to  the  benefit  of  the  said  provisions,  the  suba- 
queous cable  must  be  at  least  two  miles  from  the  centre  of  shipping 
in  the  port  of  San  Francisco. 

The  Act  of  April  4,  1861,  amends  the  foregoing  acts  as  follows : 

Less  than  three  persons  shall  not  form  the  association. 

Their  certificate  shall  designate  the  general  route  of  the  principal 
line  or  lines,  designating  the  principal  points  to  be  connected ;  the 
names  and  places  of  residence  of  the  principal  shareholders,  and  the 
number  of  shares  held  by  each :  the  period  of  company's  existence 
not  to  exceed  fifty  years. 

By  the  consent  of  two-thirds  of  the  shareholders,  it  may  continue 
its  corporate  existence,  or  may  be  incorporated  under  the  same  or 
a  new  name ;  shall  make  a  certificate,  in  which  they  may  embrace 
all  matters  necessary  to  carry  out  the  purposes  of  the  company ; 
stating  also  its  capital  stock,  and  number  of  shares.  Such  new  com- 
pany succeeds  to  all  the  rights,  and  incurs  all  the  liabilities,  of  the 
old  company. 

Such  company  shall  have  power  to  purchase  and  use,  or  sell  to 
others,  any  patent  or  patents  for  telegraphing;  to  purchase  and 
hold  all  rights,  privileges,  and  franchises  relating  to  the  business  of 
telegraphing ;  to  make  all  necessary  contracts  in  relation  to  the  con- 
struction of  the  telegraph  works ;  to  purchase,  lease,  take,  etc.,  any 
telegraph  works  within  or  without  the  State,  all  property,  personal 
and  real,  and  all  grants,  franchises,  and  privileges,  that  may  be 
necessary  or  proper  in  the  transaction  of  its  business,  may  appoint 
all  necessary  officers,  and  make  reasonable  regulations,  by-laws,  etc. 


CALIFORNIA.  461 

The  company  may  at  any  time,  with  the  consent  of  two-thirds  of 
the  shareholders,  sell,  lease,  or  assign  any  rights,  privileges,  fran- 
chises, and  property,  except  its  corporate  franchise. 

This  act  applies  to  companies  already  formed,  as  well  as  those  to 
be  formed  after  its  passage.  Statutes  of  California,  c.  104. 

The  Act  of  April  18,  1862,  makes  it  a  misdemeanor,  punishable 
with  fine  not  exceeding  one  thousand  dollars,  or  imprisonment  not 
to  exceed  one  year,  or  both,  in  any  employe  of  the  company,  or  any 
other  person,  to  wilfully  divulge  the  contents  or  the  purport  of  any 
message,  or  part  thereof,  sent,  or  intended  to  be  sent,  over  the  line ; 
or  to  wilfully  alter  the  same,  to  the  injury  of  the  sender  or  the  per- 
son to  whom  sent ;  and  the  offender  shall  be  liable  for  damages  in  a 
civil  action.  Provided,  That  when  numerals,  or  words  of  number, 
occur  in  the  message,  the  operator  may  express  the  same  in  words 
or  figures,  or  in  both,  without  being  guilty  of  an  alteration  of  the 
message ;  nor  shall  the  message  be  affected  thereby. 

It  shall  be  a  misdemeanor,  punishable  as  above,  to  knowingly  and 
wilfully  send  or  deliver  a  false  or  forged  message,  or  to  furnish,  or 
conspire  to  furnish,  such  message  to  an  operator,  to  be  sent  or  de- 
livered, with  intent  to  injure,  deceive,  or  defraud  any  person, 
corporation,  or  the  public;  and  the  offender  shall  be  liable  for 
damages  in  a  civil  action. 

It  shall  also  be  a  misdemeanor,  punishable  as  above,  in  any  em- 
ploye of  the  company  to  use  or  appropriate  information  in  any  private 
message  acquired  by  him  by  reason  of  his  trust  as  agent  of  the  com- 
pany, or  trade  or  speculate  upon  the  same,  or  in  any  manner  to  turn 
the  same  to  his  own  account  and  advantage ;  and  he  shall  also  be 
liable  to  the  injured  party  for  all  damages. 

It  is  also  a  misdemeanor,  punishable  with  fine  not  exceeding  five 
hundred  dollars,  and  imprisonment  not  exceeding  six  months,  or 
both,  to  unseasonably  and  wilfully  neglect  to  send  a  message,  or 
postpone  the  same  out  of  its  order,  or  neglect  or  refuse  to  deliver 
the  same  ;  but,  to  constitute  this  an  offence,  the  charges  of  transmis- 
sion must  have  been  paid  or  tendered ;  nor  shall  the  employe  of  the 
company  send  any  message,  counselling  or  aiding  treason  against  the 
United  States  or  this  State,  or  other  resistance  to  their  lawful 
authority ;  or  any  message  calculated  to  further  any  fraudulent  pur- 
pose or  unlawful  act,  or  to  facilitate  the  escape  of  a  criminal,  or 
person  accused  of  crime. 

It  shall  be  a  misdemeanor,  punishable  as  in  case  of  divulging 


462  APPENDIX. 

messages,  to  wilfully  or  unlawfully  open  any  sealed  envelop  enclos- 
ing a  message,  with  the  view  of  learning  its  contents ;  or  to  fraudu- 
lently personate  another,  and  thereby  procure  the  delivery  to  himself 
of  the  message  directed  to  such  person,  with  the  intent  to  use, 
destroy,  or  detain  the  same ;  and  the  offending  party  shall  be  liable 
in  treble  damages  to  the  injured  person  for  all  damage  sustained 
thereby. 

It  is  also  a  misdemeanor,  punishable  as  above,  to  wilfully  and 
fraudulently  read,  or  attempt  to  read,  by  means  of  any  instrument, 
or  in  any  other  manner,  any  message  on  its  transit,  or  to  wilfully 
and  fraudulently  or  clandestinely  learn,  or  attempt  to  learn,  the  con- 
tents or  meaning  of  a  message  while  in  a  telegraph  office,  or  while 
being  received  thereat,  or  sent  therefrom;  or  to  use,  or  attempt  to 
use  or  communicate,  any  information  obtained  by  any  person  ;  and 
the  offender  shall  also  be  liable  to  damages  in  a  civil  action. 

It  is  also  a  misdemeanor,  punishable  as  above,  to  bribe  a  telegraph 
operator  or  employe  to  disclose  any  private  message,  or  the  purport 
of  the  same ;  and  it  is  a  like  offence  to  offer  such  bribe,  or  to  offer  a 
bribe  to  such  operator  or  employe  for  the  disclosure  of  any  private 
information  received  by  him  by  reason  of  his  trust  as  agent,  etc. ;  or 
to  use,  or  attempt  to  use,  such  information  when  obtained :  and  the 
offender  shall  be  liable  to  damages  in  a  civil  action. 

It  is  a  misdemeanor,  punishable  by  fine  not  exceeding  five  hun- 
dred dollars,  and  imprisonment  not  exceeding  six  months,  or  both, 
to  wilfully  and  maliciously  injure  or  destroy  any  of  the  works  or 
property  and  material  of  a  telegraph  company,  or  appertaining 
thereto;  or  to  wilfully  and  maliciously  interfere,  in  any  way,  with 
the  working  or  the  use  of  any  telegraph  line,  or  obstruct  or  post- 
pone the  transmission  of  any  message  over  the  same  ;  and  the  offend- 
ing party  shall,  moreover,  be  liable  to  the  telegraph  company  in  an 
amount  equal  to  one  hundred  times  the  actual  damage  sustained 
thereby. 

All  employes  of  telegraph  company,  whilst  employed  in  the 
offices  of  said  company,  or  along  the  route  of  their  lines,  shall  be 
exempt  from  militia  duty,  and  from  serving  on  juries,  and  from  any 
fine  or  penalty  for  the  neglect  thereof. 

Contracts  .made  by  telegraph  companies  shall  be  deemed  to  be 
contracts  in  writing;  and  all  communications  sent  by  telegraph, 
and  signed  by  the  sender,  or  by  his  authority,  shall  be  deemed  to  be 
in  writing. 


CALIFORNIA.  463 

Whenever  any  notice,  information,  or  intelligence,  written  or 
otherwise,  is  required  to  be  given,  it  may  be  given  by  telegraph ; 
provided  the  message  be  delivered  to  the  person  entitled  thereto,  or 
to  his  agent  or  attorney.  Notice  by  telegraph  shall  be  deemed 
actual  notice. 

Any  instrument  of  writing,  duly  proved  or  acknowledged  and 
certified,  so  as  to  be  entitled  to  record,  may,  together  with  the  cer- 
tificate of  proof  or  acknowledgment,  be  sent  by  telegraph,  and  the 
telegraphic  copy,  or  duplicate  thereof,  shall  primd  facie  have  the 
same  effect  in  all  respects,  and  be  admitted  to  record  in  the  same 
manner  as  the  original. 

Checks,  due-bills,  promissory  notes,  bills  of  exchange,  and  all 
orders  and  agreements  for  the  payment  or  delivery  of  money,  or 
other  thing  of  value,  may  be  made  or  drawn  by  telegraph,  shall  have 
the  same  force  and  obligation  upon  all  parties  to  them,  and  be  en- 
titled to  the  same  days  of  grace,  as  if  duly  made  and  delivered  in 
writing ;  but  no  person  except  the  maker  or  drawer  shall  send  any 
such  instrument  by  telegraph. 

When  such  instrument  is  denied  under  oath,  it  shall  be  incumbent 
on  the  party  claiming  under  or  alleging  the  same,  to  prove  the  ex- 
istence and  execution  of  the  original  writing  from  which  the  tele- 
graph copy  or  duplicate  was  transmitted.  The  original  message 
shall  in  all  cases  be  preserved  in  the  telegraph  office  from  which  the 
same  is  sent. 

Except  as  above  provided,  any  instrument  in  writing,  duly  cer- 
tified by  a  notary  public,  commissioner  of  deeds,  or  clerk  of  Court 
of  Record,  to  be  genuine,  within  his  personal  knowledge,  may,  with 
the  certificate,  be  sent  by  telegraph,  and  the  telegraph  copy  shall 
primd  facie  have  the  same  effect  as  the  original,  and  the  onus  pro- 
bandi  shall  be  on  the  party  denying  the  genuineness  or  due  exe- 
cution of  the  original. 

Whenever  any  person  has  been  indicted,  or  accused  on  oath,  of 
any  public  offence,  or  convicted  thereof,  and  a  warrant  of  arrest 
shall  have  been  issued,  the  magistrate  issuing  it,  or  Justice  of  Su- 
preme Court,  or  Judge  of  District  or  County  Court,  may  indorse 
thereon  an  order,  signed  by  him,  and  authorizing  the  service  thereof 
by  telegraph ;  it  may  then  be  sent  by  telegraph  to  any  marshal, 
sheriff,  constable,  or  policeman,  and  his  duties  shall  be  the  same  as 
if  the  original  warrant  had  been  placed  in  his  hands.  The  telegraph 


464  APPENDIX. 

copy  shall  have  the  same  force  and  effect  in  all  courts  and  places  as 
the  original. 

But,  prior  to  indictment,  no  such  indorsement  shall  be  made  by 
an  otlicer,  unless,  in  his  judgment,  there  is  probable  cause  to  believe 
the  party  guilty. 

The  making  of  this  order  shall  be  primd  facie  evidence  of  the 
regularity  thereof,  and  of  all  proceedings  prior  thereto. 

The  original  warrant,  with  indorsements,  or  certified  copies  by 
the  officer  making  the  order,  shall  be  preserved  in  the  office  from 
which  the  same  are  sent,  and,  in  telegraphing  the  same,  the  original 
or  the  certified  copy  may  be  used. 

All  civil  process  may  be  transmitted  by  telegraph,  and  the  tele- 
graph copy  served,  and  returns  made,  in  the  same  manner  as  on  the 
original;  and  the  officer  executing  the  same  shall  have  the  same 
rights,  and  be  subject  to  the  same  liabilities,  as  if  the  original  were 
in  his  hands.  The  original,  when  a  writ  or  order,  shall  be  filed  in 
the  court  from  which  it  issued,  and  a  certified  copy  preserved 
in  the  telegraph  office  from  which  it  was  sent ;  and  the  operator, 
in  transmitting,  may  use  either  the  original  or  the  certified  copy. 

The  letters  "  L.S."  or  the  word  "  Seal,"  may  be  used  by  the 
operator  to  designate  either  private  or  official  seals  upon  documents 
transmitted  by  telegraph. 

The  president  or  secretary  of  the  telegraph  companies  may  file  in 
the  office  of  Clerk  of  County  Court  of  the  county  in  which  the  com- 
pany's principal  office  is  situated,  a  copy  of  any  printed  blank  or 
envelope,  picture  or  device,  used  or  to  be  used  by  the  company, 
with  his  certificate  that  the  same  is  commonly  used,  or  intended  to 
be  used,  in  the  business  of  the  company  as  a  distinguishing  mark, 
notice,  or  index  of  said  business.  This  shall  give  the  company  the 
exclusive  right  to  its  use,  and  it  shall  be  the  company's  property ; 
and  it  is  made  a  misdemeanor,  punishable  by  fine  not  exceeding  five 
hundred  dollars,  and  imprisonment  not  exceeding  six  months,  to 
use  or  print,  publish,  and  distribute  such  mark. 

Messages  shall  be  transmitted  in  the  order  in  which  they  are  re- 
ceived, under  penalty  of  one  hundred  dollars,  to  be  recovered,  with 
costs,  by  the  sender.  Provided,  communications  between  public 
officers,  upon  official  business,  shall  have  preference  over  all  other 
transmissions ;  and  provided  further,  that  intelligence  of  general 
and  public  interest  may  be  transmitted  for  publication  out  of  its 
order. 


CONNECTICUT.  465 

The  term  "  telegraph  copy,"  or  "  telegraph  duplicate,"  means  any 
copy  of  a  message,  made  or  prepared  for  delivery  at  the  office  to 
which  the  message  may  have  been  sent  by  telegraph. 

Nothing  in  this  act  shall  be  construed  to  lessen  the  liabilities  of 
telegraph  companies. 

By  the  Act  of  March  24,  1864,  c.  233,  sec.  1,  .whenever  any 
document,  to  be  transmitted  by  telegraph,  bears  a  revenue  stamp, 
the  same  may  be  expressed  in  the  telegraph  copy  by  the  word 
"  stamp,"  stating  the  amount  thereof,  without  any  further  description 
of  the  stamp. 

G. 

CONNECTICUT. 

The  provisions  in  relation  to  Telegraph  Companies  in  Connecti- 
cut (see  Revision  of  1866,  Telegraph  Companies,  title  7,  c.  7, 
sec.  558-575)  are  the  same  as  those  contained  in  the  California 
Act  of  April  22,  1850  (ante,  App.  F.),  except  in  the  following  par- 
ticulars :  — 

The  copy  of  the  certificate  which  the  officers  of  the  association 
are  to  make  preliminary  to  their  organization,  is  to  be  filed  with  the 
clerk  of  the  town,  instead  of  the  clerk  of  the  county,  as  provided  by 
the  California  Act. 

This  act  is  silent  as  to  the  officers  before  whom  the  acknowledg- 
ment is  to  be  taken. 

Sec.  563  provides,  that  no  telegraph  company  or  association 
shall  place  their  posts,  piers,  or  abutments  upon  any  highway,  with- 
out the  consent  of  the  proprietors  of  the  land  adjoining  the  highway ; 
or,  if  this  consent  is  refused,  without  the  approbation  of  one  of  the 
County  Commissioners  in  the  county  where  the  land  is  situate ; 
which  approbation  shall  be  in  writing,  and  given  only  after  a  hear- 
ing, upon  due  notice  to  the  proprietor. 

Any  County  Commissioner  has  power  to  make  orders  regulating 
the  location  of  the  posts,  piers,  and  abutments,  and  the  manner  of 
their  construction  so  as  least  to  incommode  the  public  travel  and 
individuals,  and  may,  for  sufficient  cause,  at  any  time,  change  their 
location,  whether  they  have  been  erected  or  not ;  first  giving  the 
company  notice  to  appear  and  be  heard  in  relation  thereto. 

30 


466  APPENDIX. 

Sec.  565  authorizes  telegraph  companies  to  maintain  established 
lines  upon  highways,  and  to  repair,  renew,  and  reconstruct  the 
same  as  occasion  may  require,  so  as  not  to  change  substantially 
the  present  course  of  the  lines.  But  if  the  poles  become  an  annoy- 
ance to  the  public,  or  to  an  individual  in  the  use  of  his  property,  they 
may  be  removed  by  order  of  the  Superior  Court  of  the  county 
where  such  poles  are,  upon  complaint  of  the  State's  Attorney  in 
said  county,  or  of  the  party  aggrieved.  After  reasonable  notice  to  the 
company,  and  a  hearing  of  the  matter,  the  court  may  make  all 
necessary  orders  to  enforce  their  removal. 

The  company  are  prohibited  from  cutting,  or  in  any  way  injuring, 
fruit,  shade,  or  ornamental  trees,  without  the  consent  of  the  owner; 
nor  shall  they  prevent  the  owners  of  laud  along  which  the  lines  may 
be  constructed,  from  constructing  and  repairing  buildings  and  fences, 
and  grading  and  improving  their  grounds. 

Sec.  566  authorizes  the  wardens  and  burgesses  of  any  borough, 
and  the  mayor  and  common  council  of  any  city,  Upon  giving  reason- 
able notice  to  the  company,  to  compel  the  company  to  furnish  such 
poles,  of  the  style  and  finish  as  those  officials  may  determine,  with- 
in their  limits. 

By  sec.  567  the  Superior  Court  in  the  county  appoint  the  ap- 
praisers to  assess  damages,  instead  of  the  County  Court,  as  provided 
by  the  California  Act. 

Sec.  568  provides,  that  any  person  entitled,  nominally  or  other- 
wise, to  compensation,  who  is  not  willing  to  waive  it,  shall  demand 
it  by  leaving  at  some  office  of  the  company  a  written  notice  de- 
manding the  same ;  thereupon,  if  the  parties  cannot  agree,  the 
owner  shall  make  application  as  provided  by  sec.  567. 

Sec.  571  provides  that  the  stockholders  shall  be  jointly  and  sever- 
ally liable  for  the  debts  and  demands  of  the  company,  contracted,  or 
which  shall  be  due  or  become  due,  during  the  time  of  their  holding 
the  stock;  but  this  liability  shall  not  exceed  twenty-five  per  cent  of 
their  stock ;  nor  shall  they  be  proceeded  against  until  judgment  has 
been  rendered  against  the  association,  and  the  execution  returned 
unsatisfied  in  whole  or  in  part,  unless  'the  association  has  been 
dissolved. 

Sec.  572  provides  that  telegraph  despatches  shall  be  received, 
and  shall  be  transmitted  with  impartiality  and  good  faith,  upon 
payment  of  the  regular  charges  ;  and  a  penalty  of  one  hundred 
dollars  is  imposed  for  any  neglect  or  refusal  so  to  do,  to  be  recovered 


DELAWARE.  467 

by,  and  in  the  name  of  the  person  sending  or  desiring  to  send  the 
message. 

Sec.  573  provides  that  the  messages  shall  be  transmitted  in  the 
order  in  which  they  are  received,  under  a  like  penalty  as  in  sec. 
572 ;  but  arrangements  may  be  made  with  the  proprietors  of  news- 
papers for  the  transmission  for  publication  of  intelligence  of  general 
interest  out  of  its  order,  and  communications  from  officers  of  justice 
shall  have  precedence  over  all  others. 

Sec.  574  makes  the  provisions  of  this  act  applicable  to  all  com- 
panies of  other  States  whose  lines  extend  into  this  State. 

Sec.  575  provides  that,  in  case  of  repeal  of  this  act,  all  rights 
herein  conferred  on  foreign  corporations  or  persons  shall  be  vested 
in  the  original  owners  of  the  land  on  which  the  telegraph  poles  are 
located. 

By  c.  4,  Acts  1848  (Revision  of  1866,  title  12,  sec.  88),  to 
unlawfully  and  intentionally  injure,  molest,  or  destroy  any  of  the 
lines  or  other  property  of  telegraph  companies  organized  under 
the  laws  of  the  State,  is  punishable  by  fine  not  exceeding  two 
hundred  dollars,  or  imprisonment  not  exceeding  one  year,  or 
both. 

An  annual  statement  of  the  gross  amount  of  receipts  for  telegraph 
despatches  paid  to  the  company  within  the  limits  of  the  State,  shall 
be  furnished  to  the  Comptroller  of  Public  Accounts,  and  a  tax  of  two 
per  cent  shall  be  paid  upon  this  amount,  which  shall  be  in  lieu  of 
all  other  taxes  upon  the  real  and  personal  estate  of  the  company 
which  is  used  exclusively  in  its  telegraph  business. 

H. 
DELAWARE. 

A  penalty  of  twenty-five  dollars  for  the  first,  and  of  fifty  dollars 
for  the  second,  offence  is  imposed  for  the  wilful  and  malicious  cutting 
down  of  any  pole,  or  injury  thereto,  or  for  cutting,  breaking,  or  dis- 
placing any  wire  of  any  telegraph  company ;  and  when  the  penalty 
is  recovered  by  any  person  other  than  an  agent  of  the  company, 
one-half  shall  be  for  the  use  of  such  person.  There  shall  be  no 
stay  upon  the  judgment  for  the  penalty  ;  and,  upon  affidavit  that  the 
defendant  has  not  sufficient  property  to  satisfy  the  same,  the  defend- 
ant shall  be  imprisoned  for  one  month. 


468  APPENDIX. 

Telegraph  wires  shall  be  attached  to  the  poles  at  least  twelve  feet 
above  the  ground,  except  where  they  enter  a  house ;  and  if  any 
agent  of  the  company  having  supervision  of  the  line  suffers  this 
provision  to  be  violated  for  ten  days,  after  notice  by  mail  directed 
to  him  at  the  post-office  nearest  his  residence,  he  shall  forfeit  twenty 
dollars  to  any  person  who  will  sue  for  the  same.  Revised  Code 
1852,  c.  128,  sec.  19. 

I. 

FLORIDA. 

By  the  Act  of  December  27,  1856  (Laws  of  Florida,  c.  781, 
No.  7),  the  mode  of  organizing  telegraph  companies  is  substantially 
the  same  as  that  provided  by  the  California  Act  of  April  22,  1850 
(ante,  App.  F.),  except  that  ten  or  more  persons  must  compose  the 
association.  And  it  is  also  provided  that  the  company  shall  be 
under  the  management  of  five  trustees  or  directors,  two  of  whom 
must  be  citizens  of  the  State ;  they  shall  be  elected  by  the  stock- 
holders, and  vacancies  in  this  office  shall  be  filled  in  such  manner 
as  shall  be  provided  by  the  laws  of  the  company. 

The  company,  when  organized,  has  similar  powers  to  those  con- 
ferred by  the  above  California  statute. 

The  stockholders  shall  be  individually  liable  to  the  creditors  of 
the  association  only  for  so  much  as  may  remain  unpaid  of  his 
subscription. 

The  company  must  commence  active  operations  within  twelve 
months  after  filing  the  certificate  in  the  office  of  the  Secretary  of 
State,  or  the  organization  shall  be  held  to  be  dissolved. 

The  company  may  purchase  from  any  person,  corporation,  or 
governments,  any  grants,  concessions,  or  privileges  for  the  prosecu- 
tion, of  their  enterprise,  and  may  issue  stock  to  the  amount  of  the 
same,  which  shall  be  full  stock,  not  liable  to  any  call  or  demand 
whatever;  provided  such  grants,  concessions,  or  privileges  shall  be 
material  for  the  objects  of  the  association. 

By  Act,  Dec.  30,  1856,  the  company  may  erect  their  posts,  wires, 
and  other  fixtures  upon  the  public  roads,  so  as  not  to  interfere  with 
public  travel. 

It  is  also,  by  this  act,  made  a  misdemeanor,  punishable  with  fine 
and  imprisonment,  to  wilfully  destroy,  or  in  any  way  injure,  the 
telegraph  posts,  wires,  or  other  fixtures. 


ILLINOIS.  469 

J. 

GEORGIA. 

Any  company  or  individual  may  erect  posts  and  wires  and  other 
fixtures  for  telegraph  purposes,  on  or  by  the  side  of  the  public 
roads  or  highways  in  the  State ;  but  they  must  be  so  constructed 
as  not  to  interfere  with  the  public  use  of  the  road.  Digest  of  1851 
Magnetic  Telegraph,  sec.  1. 

By  Act,  February  15,  1854,  it  is  made  a  high  misdemeanor  pun- 
ishable by  imprisonment  at  hard  labor  in  the  penetentiary,  for  not 
exceeding  three,  nor  less  than  one,  year,  at  the  discretion  of  the 
Court,  to  wilfully  destroy,  damage,  or  in  any  way  injure,  the  wires, 
posts,  or  fixtures  of  telegraph  companies. 

K. 
ILLINOIS. 

The  Act  of  Feb.  9,  1849  (Session  Laws,  p.  188),  is  the  same 
as  the  California  Act  of  April  22,  1850  (ante,  App.  F.),  except  in 
the  following  particulars  :  — 

The  commissioners  to  assess  damages  are  appointed  by  the 
Judge  of  the  Circuit  Court ;  and  there  is  no  limitation  as  to  the 
time  within  which  the  application  must  be  made  for  damages. 
Sec.  6. 

The  association  may  provide  in  its  articles  of  association  not  only 
for  an  increase  of  capital  stock,  but  for  the  extension  of  new  lines  of 
telegraph  from  time  to  time.  Sec.  8. 

The  refusal  to  receive  despatches  and  transmit  them  in  good  faith 
and  with  impartiality,  shall  cause  a  forfeiture  of  all  rights  and 
privileges  acquired  under  the  act,  and  a  dissolution  of  the  associa- 
tion. Sec.  9. 

The  employe  of  the  company  who  fails  to  transmit  the  message, 
or  who  suppresses  or  divulges  the  contents  of  the  message,  shall  be 
guilty  of  a  misdemeanor,  punishable  by  fine  not  exceeding  one 
thousand  dollars.  Sec.  11. 

Process  may  be  served  upon  any  clerk  or  agent  of  the  company. 
Sec.  12. 

By  the  Act  of  Feb.  21, 1861,  any  person  transmitting,  or  causing 
to  be  transmitted,  by  telegraph  any  falsehood,  knowing  the  same  to 


470  APPENDIX. 

be  such,  shall  be  guilty  of  a  misdemeanor,  punishable  by  fine  not 
exceeding  five  hundred  dollars. 

L. 

INDIANA. 

By  the  Act  of  May  13,  1852  (Revision  of  1860,  c.  179;  see 
also  1  Rev.  Stat.  1852,  p.  481),  telegraph  companies  shall  receive 
messages  for  transmission  from  other  lines,  and  from  individuals, 
and  transmit  the  same  with  impartiality  and  good  faith,  and  in  the 
order  of  time  in  which  they  are  received,  under  penalty  of  one 
hundred  dollars,  to  be  recovered  by  the  person  whose  despatch  is 
postponed  or  neglected;  provided,  that  communications  of  public 
interest  may  be  transmitted  for  newspapers  out  of  their  order,  and 
communications  from  and  for  officers  of  justice  shall  have  prece- 
dence of  all  others. 

Telegraph  companies  shall  be  liable  for  special  damages,  for 
failure  or  negligence  in  receiving,  copying,  transmitting,  delivering, 
or  disclosing  messages.  Sec.  2. 

Despatches  shall  be  delivered  by  a  messenger,  on  payment  of  any 
charges  due  for  the  same,  provided  the  person  to  whom  the  mes- 
sage is  addressed,  or  his  agent,  resides  within  a  mile  of  the  city  or 
town  where  the  terminal  is.  Sec.  3. 

Railroad  companies  may  be  stockholders  in  telegraph  companies, 
or  may  construct  a  telegraph  to  connect  two  or  more  points  on  their 
road  ;  and,  if  they  be  the  sole  owners  of  the  line,  shall  not  be  obliged 
to  transmit  for  the  public,  but  may  do  so.  Sec.  4. 

Contracts  by  telegraph  shall  be  contracts  in  writing.     Sec.  5. 

Telegraph  companies  shall  have  power  to  lease,  or  attach  to 
them  other  telegraph  lines  by  lease  or  purchase. 

They  may  reduce  the  capital  stock  to  any  amount  not  below  the 
cost  of  construction,  with  the  consent  of  a  majority  of  the  stock- 
holders. 

Officers  and  directors  to  be  elected  from  amongst  stockholders 
living  in  this  State,  or  at  some  point  in  an  adjoining  State  where 
there  is  a  telegraph  station. 

Irregularities  in  organization  of  former  companies  are  legalized. 
Act  Feb.  1,  1853  (Revision  of  1860),  c.  180. 

The  wilful  and  malicious  injury  of  any  telegraph  pole  or  wire 
shall  be  punished  by  imprisonment  in  the  State  prison  not  more 


KANSAS.  471 

than  two  years,  or  fine  not  exceeding  five  hundred  dollars,  and 
imprisonment  in  the  county  jail  not  less  than  three  nor  more  than 
six  months.  Act  of  June  10,  1852,  (2  Rev.  Stat.  1852,  p.  388). 
Revision  of  1860,  c.  6,  sec.  48. 

The  disclosure  of  messages  by  any  employe  of  the  company 
except  to  courts  of  justice,  shall  be  punished  by  fine  not  exceeding 
five  hundred  dollars.  Revision  of  1860,  c.  7,  sec.  72. 

M. 

IOWA. 

Any  person  may  construct  telegraph  lines,  but  so  as  not  to 
incommode  the  public  in  the  use  of  highways  or  the  navigation  of 
streams ;  and,  if  placed  upon  private  grounds,  a  just  compensation 
must  be  made. 

If  such  person  claim  more  damages  than  the  proprietor  of  the 
telegraph  is  willing  to  pay,  the  amount  of  damages  is  to  be  deter- 
mined as  provided  in  Revision  of  1860,  sec.  1282.  Revision  of 
1860,  sees.  1348-1350. 

Proprietors  of  telegraph  lines  refusing  to  receive  and  transmit  with 
.fidelity,  and  without  unreasonable  delay,  messages  from  other  tele- 
graph lines  shall  lose  the  benefit  of  all  laws  of  the  State  in  relation 
to  limited  partnerships,  to  corporations,  and  to  obtaining  private 
property  for  the  use  of  such  telegraph;  and,  if  private  property 
has  been  taken  without  the  owner's  consent,  he  may  reclaim  the 
same. 

It  is  a  misdemeanor  in  any  employe  to  intentionally  transmit  a 
message  erroneously,  or  to  divulge  the  contents  of  any  message  sent 
or  received,  or  to  unreasonably  delay  the  transmission  of  any 
message. 

The  proprietor  of  the  telegraph  is  liable  for  all  mistakes  made  by 
his  employes  in  the  transmission  of  messages,  as  well  as  for  all 
damages  resulting  from  failure  to  perform  any  other  duty  required 
by  law.  Revision  of  1860,  sees.  1351-1353. 

isr. 

KANSAS. 

By  the  Act  of  Feb.  9,  1859,  any  number  of  persons  not  less  than 
five  may  be  incorporated,  and  they  shall  make  a  certificate  which 


472  APPENDIX. 

shall  be  acknowledged  before  a  magistrate,  certified  by  the  clerk  of 
the  District  Court  of  the  county,  and  be  filed  in  the  office  of  Secre- 
tary of  State. 

The  contents  of  this  certificate,  and  the  effect  of  it  as  evidence, 
are  the  same  as  provided  by  the  California  Act  of  April  22,  1850 
(ante,  App.  F.).  They  shall  have  the  right  to  construct  their  lines 
to  such  points,  and  along  such  routes,  as  are  designated  in  the 
certificate. 

When  ten  per  centum  of  the  capital  stock  has  been  subscribed,  a 
meeting  of  the  stockholders  shall  be  called,  and  three  directors 
elected. 

There  shall  be  an  annual  meeting  of  stockholders,  when  a  presi- 
dent, three  directors,  and  treasurer  shall  be  chosen. 

At  these  annual  meetings  regulations  and  by-laws  may  be 
adopted. 

This  act  authorizes  the  construction  of  lines  of  telegraph  upon 
the  public  roads ;  but  so  as  not  to  incommode  the  public  in  the  use 
of  the  roads.  Compiled  Laws  of  Kansas  for  1862,  c.  44, 
sees.  16-19. 

Railroad  companies  are  authorized  to  construct  lines  of  telegraph 
along  their  routes,  as  soon  as  the  construction  of  the  road  is  com- 
menced, with  all  the  powers  and  privileges  of  telegraph  companies. 
Ibid.  c.  170. 

o. 

KENTUCKY. 

The  wilful  and  malicious  injury,  obstruction,  or  destruction  of  a 
telegraph  line,  or  any  fixtures  or  property  connected  therewith,  is 
punishable  by  imprisonment  in  the  penitentiary  not  less  than  two 
nor  more  than  ten  years. 

It  is  an  offence,  punishable  by  fine  of  not  less  than  ten  nor  more 
than  five  hundred  dollars,  to  knowingly  transmit  false  intelligence 
by  telegraph,  with  intent  to  injure  any  one,  or  to  speculate  upon 
any  article  of  merchandise,  commerce,  or  trade,  or  with  intent  that 
another  may  do  so. 

If  the  employe*  of  the  company,  from  corrupt  or  improper  motive, 
or  wilful  negligence,  withholds  the  transmission  of  messages  for 
which  the  customary  charges  have  been  paid  or  tendered,  he  shall 


LOUISIANA.  473 

be  punished  by  fine  not  less  tban  ten  nor  more  than  five  hundred 
dollars.  Revised  Statutes  1860,  vol.  1,  pp.  394,  395,  c.  28,  art.  14> 
sees.  5,  6. 

P. 
LOUISIANA. 

Telegraph  companies  may  construct  their  lines  over  any  high- 
ways, and  all  lands  owned  by  the  State,  and  over  all  navigable 
waters,  but  so  as  not  to  interfere  with  the  public  use  of  the  same,  or 
the  drainage  or  natural  servitudes  of  the  land. 

There  is  the  same  provision  in  relation  to  the  immediate  trans- 
mission of  messages,  in  case  of  war,  insurrection,  etc.,  as  provided 
by  the  Tennessee  statute  (post,  App.  II)  ;  with  the  additional  pro- 
vision, that  it  shall  be  a  misdemeanor,  punishable  with  fine  not  ex- 
ceeding one  thousand  dollars,  and  imprisonment  not  exceeding  one 
year,  for  any  officer,  clerk,  or  operator  to  refuse  or  intentionally 
omit  to  transmit  such  messages,  or  to  designedly  alter  or  falsify  the 
same. 

Messages  shall  be  transmitted  in  the  order  of  their  reception, 
provided  they  are  not  immoral,  or  contrary  to  law  or  public  policy. 

The  unlawful  and  intentional  injury,  molestation,  or  destruction 
of  any  telegraph  line,  or  property  belonging  thereto,  or  interference 
with  the  use  of  such  line,  is  punishable  by  imprisonment  in  the 
penitentiary  not  exceeding  one  year,  or  fine  not  exceeding  five 
hundred  dollars,  or  both. 

The  refusal  by  any  employe  of  the  company  to  deliver  any  mes- 
sage, the  charges  having  been  paid,  or  for  the  payment  of  which 
a  contract  shall  have  been  made,  or  causing  the  delay  or  detention 
of  such  message,  to  give  precedence  to  a  message  offered  for  trans- 
mission subsequent  to  such  message,  or  to  give  precedence  to  the 
message  of  an  officer,  director,  or  stockholder  of  the  company,  or 
other  person,  or  to  reveal  or  make  use  of  any  message,  is  punish- 
able by  fine  not  less  than  fifty  nor  more  than  one  hundred  dollars ; 
one-half  to  the  Charity  Hospital  of  New  Orleans,  and  the  other  half 
for  the  use  of  the  parish  in  which  the  offence  is  committed ;  and  the 
offender  shall  also  be  answerable  in  damages  to  the  injured  party, 
and  for  a  subsequent  offence  shall  be  liable  to  imprisonment  in  the 
parish  prison  not  more  than  three  months. 

It  is  an  offence  in  any  employe  of  the  company,  punishable  with 


474  APPENDIX. 

imprisonment  at  hard  labor  not  less  than  one  nor  more  than  two 
years,  and  fine  not  less  than  two  hundred  and  fifty  nor  more  than 
five  hundred  dollars,  to  transmit  any  message  which  can  in  any  way 
tend  to  defeat  the  ends  of  justice,  by  preventing  the  apprehension  of 
fugitives  from  justice,  or  by  communicating  such  information  as 
may  enable  any  person  charged  with  any  offence  to  escape. 

Q. 

MAINE. 

By  the  Act  of  1852,  c.  237,  any  person  or  company  operating 
a  line  wholly  or  partially  in  the  State  shall  be  liable  for  the  whole 
amount  paid  for  the  message,  -whenever  there  is  any  error,  or  any 
improper  or  unnecessary  delay  in  the  writing  out,  transmission,  or 
delivery  within  the  usual  delivery-limits  of  their  office,  of  such 
message. 

If  the  operator  or  agent  designedly  falsify  a  despatch  for  any 
purpose,  he  shall  forfeit  not  less  than  twenty  nor  more  than  one  hun- 
dred dollars  for  each  offence,  to  be  recovered  in  an  action  of  debt ; 
and  if  he  evade  the  payment  of  the  same,  or  is  unable  to  pay,  the 
company  shall  forfeit  the  same  sum. 

Nothing  in  this  act  shall  exonerate  any  employe*  of  the  company 
from  liability  for  fraud  committed  or  attempted  by  telegraph  com- 
munication ;  nor  the  company  from  liability  as  at  common  law,  for 
any  neglect  or  wrongdoing  of  such  company  or  its  agents.  Revised 
Statutes  of  Maine,  1857,  c.  53,  Telegraph  Companies. 

R. 
MARYLAND. 

Any  seven  or  more  white  persons,  citizens  of  the  United  States, 
and  a  majority  of  them  citizens  of  this  State,  may  form  an  associa- 
tion for  constructing  telegraph  lines. 

There  are  the  same  provisions  in  relation  to  the  certificate,  and 
the  powers  of  the  company  after  it  is  made,  as  contained  in  the 
California  Act  of  April  22,  1850  (ante,  App.  F.),  except  that  the 
certificate  shall  be  recorded  in  the  office  of  the  clerk  of  the  Circuit 
Court ;  in  Baltimore,  in  the  office  of  the  clerk  of  the  Superior  Court 
of  that  city. 


MARYLAND.  475 

There  is  the  same  provision  as  to  constructing  lines  along  public 
roads,  and  across  navigable  streams,  as  contained  in  the  above  Cali- 
fornia Act. 

The  company  shall  first-  obtain  the  written  consent  of  the  person 
over  whose  land  the  lines  are  intended  to  pass. 

If  such  consent  cannot  be  had,  a  magistrate  shall  issue  his  war- 
rant directing  the  impanelling  of  a  jury  of  twelve  men,  who  shall 
make  a  just  and  equitable  appraisal  of  the  damages,  which  shall  be 
reduced  to  writing,  and  filed  with  the  clerk  of  the  Circuit  Court  of 
the  county,  for  confirmation  by  the  Court.  When  confirmed,  the 
corporation  shall  pay  the  damages  assessed,  and  costs  of  the  pro- 
ceeding, before  proceeding  to  erect  the  posts,  piers,  or  abutments. 

The  articles  of  association  may  provide  for  an  increase  of  the 
capital  stock,  and  the  number  of  the  association. 

Stockholders  shall  be  liable,  personally,  to  the  extent  of  twenty- 
five  per  centum  of  their  capital  stock,  for  the  debts  of  the  company 
contracted,  or  falling  due,  during  the  time  they  hold  the  stock ;  but 
the  stockholder  shall  not  be  proceeded  against  until  judgment  has 
been  taken  against  the  company,  and  execution  returned  unsatisfied 
in  whole  or  in  part,  unless  the  association  has  been  dissolved. 

The  directors,  with  the  consent  of  the  owners  of  two-thirds  of  the 
stock,  may  extend  their  line  of  telegraph,  or  construct  branch  lines 
from  the  main  line,  or  unite  with  other  telegraph  companies. 

The  telegraph  companies  must  receive  despatches  from  all  per- 
sons, and  transmit  the  same  with  impartiality  and  good  faith,  under 
penalty  of  one  hundred  dollars  for  each  offence,  to  be  recovered  in 
the  name  and  for  the  benefit  of  the  person  sending  the  message. 

Messages  must  be  transmitted  in  the  order  in  which  they  are  re- 
ceived, under  like  penalty  ;  but  arrangement  may  be  made  with  pro- 
prietors of  newspapers  for  sending  news  of  general  interest  for 
publication. 

It  is  a  misdemeanor,  punishable  by  fine  not  exceeding  five  hun- 
dred dollars,  or  imprisonment  in  county  jail  not  exceeding  one  year, 
or  both,  to  unlawfully  and  intentionally  injure,  molest,  or  destroy 
any  of  the  works  or  property  of  the  company. 

The  wilful  disclosure  of  the  contents  or  nature  of  a  message,  or  the 
wilful  refusal  or  neglect  to  send  it,  is  a  misdemeanor,  and  the  person 
guilty  of  the  offence  is  punishable  by  imprisonment,  not  exceeding 
three  months,  in  the  county  jail,  or  fine  not  exceeding  five  hundred 
dollars. 


476  APPENDIX. 

If  the  line  is  so  constructed  as  to  prevent  the  owner  of  growing 
timber  from  felling  the  same,  he  shall  not  be  liable  for  damages  in 
felling  his  timber  so  as  to  injure  the  wire,  or  other  part  of  the  works, 
unless  the  same  be  done  wilfully  to  injure  the  company's  works. 
Code  of  1860,  art.  26,  Corporations  for  Constructing  Telegraphs, 
sec.  102-121. 

The  wilful  injury  or  destruction  of  any  of  the  works  of  the 
company,  with  intent  to  interrupt  the  operations  of  the  telegraph, 
is  punishable  by  fine  of  not  less  than  five  nor  more  than  fifty  dollars, 
or  imprisonment  in  the  county  jail  not  less  than  three  nor  more  than 
twelve  months.  •  Code  of  1860,  art.  30,  sec.  203. 


S. 
MASSACHUSETTS. 

There  is  the  same  provision  in  relation  to  the  construction  of 
lines  along  public  roads,  and  across  navigable  streams,  as  in  the 
California  Act  of  22d  April,  1850.  Ante,  App.  F. 

Also  the  same  provision  as  in  that  act,  in  reference  to  receiving 
messages  and  transmitting  them  with  impartiality  and  good  faith, 
except  that  the  penalty  is  one  hundred  dollars. 

The  selectmen  of  the  town,  or  mayor  and  aldermen  of  the  city, 
through  which  the  lines  are  to  pass,  shall  give  the  company  their 
writing,  specifying  where  the  posts  may  be  located,  the  kind  of 
posts,  the  height  at  which,  and  the  place  where,  the  same  may  run. 
This  writing  shall  be  recorded  in  the  town  or  city,  and  the  company 
shall  conform  to  its  requirements. 

The  selectmen,  or  mayor  and  aldermen,  may  at  any  time  direct 
an  alteration  of  any  of  these  works,  first  giving  the  company  an 
opportunity  to  be  heard  upon  the  alteration ;  their  decision  shall  be 
recorded  in  the  Registry  of  the  town  or  city. 

Application  for  the  appraisement  of  damages  shall  be  made  to 
the  selectmen  of  the  town,  or  mayor  of  the  city ;  the  application 
must  be  made  within  three  months  after  the  construction  of  the  line. 

The  appraisers  shall  take  an  oath  to  faithfully  perform  their  duty, 
before  a  magistrate ;  their  duties  are  similar  to  what  is  prescribed  in 
the  California  Act  of  April  22,  1850.  There  is  also  the  same  pro- 
vision as  to  the  payment  of  damages  and  costs,  except  that  in  case 
no  damages  are  allowed,  the  applicant  must  pay  the  costs. 


MASSACHUSETTS.  477 

The  applicant,  if  he  consider  himself  aggrieved  by  this  proceeding^ 
may  have  a  jury,  and  then  the  proceedings  shall  be  conducted  as 
provided  in  c.  24,  sec.  76,  of  the  Revised  Statutes  concerning  town 
ways  and  private  ways. 

There  is  the  same  provision  in  relation  to  the  injury  or  destruc- 
tion of  the  telegraph  lines  or  other  property,  as  contained  in  the 
California  Act  above  mentioned,  except  that  the  term  of  imprison- 
ment is  not  exceeding  two  years. 

Any  railroad  company,  chartered  by  the  State,  may  become  a 
stockholder  in  a  telegraph  company  whose  line  connects,  or  is  to 
connect,  two  or  more  places  on  the  line  of  the  railroad,  to  an  amcjunt 
not  exceeding  two  hundred  dollars  for  each  mile  of  railroad  so 
connected. 

Telegraph  corporations  shall  have  all  the  powers,  and  be  subject 
to  all  the  liabilities,  restrictions,  and  duties,  set  forth  in  chapter  44 
of  the  Revised  Statutes.  Supplement  of  1854  to  Revised  Statutes, 
c.  93,  sees.  1-9. 

By  the  Act  of  May  23,  1851  (Supplement  of  1854,  c.  247), 
telegraph  companies  do  not  acquire  easements  upon  lands  by  placing 
and  continuing  their  works  thereon. 

Individuals  or  companies  owning  telegraph  lines  shall  be  respon- 
sible in  damages  for  all  injury  done  to  the  property  of  others  by  the 
construction  of  their  works. 

Incorporated  companies  shall  not  commence  the  construction  of 
the  telegraph  line  until  three-fourths  of  its  capital  stock  has  been 
subscribed;  and  the  directors  shall,  within  ten  days  of  the  com- 
mencement of  the  work,  file  a  sworn  statement  of  the  subscription 
in  the  office  of  the  Secretary  of  the  Commonwealth. 

No  incorporated  telegraph  company  shall  contract  or  owe  debts 
to  a  larger  amount  than  one-half  its  capital  stock  paid  in. 

Every  telegraph  corporation  shall,  on  or  before  the  first  day  of 
December  of  each  year,  make  annual  returns  to  the  Secretary  of  the 
Commonwealth,  specifying  the  location  and  line  of  the  telegraph, 
its  name,  its  capital  actually  paid  in,  its  capital  how  invested,  the 
value  of  its  real  estate,  its  annual  receipts  and  expenditures,  its  real 
estate,  its  cash  on  hand,  its  credits  on  book  account,  and  the  amount 
of  its  indebtedness.  This  return  shall  be  signed  by  the  president, 
clerk,  and  treasurer  of  the  company,  and  verified  by  their  oath. 

The  president  and  treasurer  shall  be  jointly  and  severally  liable 
for  all  the  indebtedness  of  the  company  in  case  of  wilful  neglect  or 


478  APPENDIX. 

omission  on  their  part  to  comply  with  any  of  the  provisions  of 
this  act. 

By  the  Act  of  April  6,  1859,  towns  shall  not  be  released  from 
liability  to  any  person  for  injuries  done  them  by  telegraph  companies 
within  the  limits  of  the  town,  by  reason  of  the  fact  that  the  place 
of  the  erection  of  the  posts  or  other  fixtures  having  been  designated 
by  the  selectmen  of  the  town ;  but  the  owners  of  the  telegraph 
works  shall  be  held  to  re-imburse  and  repay  to  said  town  the  full 
amount  of  damages  and  costs  recovered  by  the  party  injured. 

The  Act  of  May  4,  1864,  requires  telegraph  companies  to  return 
list  of  shareholders,  capital,  and  market  value  of  shares,  annually, 
for  taxation.  It  is  also  provided  that,  where  a  line  of  telegraph  ex- 
tends beyond  the  limits  of  the  Commonwealth,  the  company  shall 
return,  under  oath  of  its  treasurer,  the  whole  length  of  the  line,  and 
that  part  of  it  which  lies  within  the  limits  of  the  Commonwealth ; 
and  the  portion  of  the  capital  stock  taxed  by  this  act  shall  be  such 
a  portion  of  its  whole  capital  stock  as  the  length  of  the  line  in  the 
Commonwealth  bears  to  the  whole  line ;  and  every  telegraph  com- 
pany shall  pay  annually  to  the  treasurer  a  tax  of  one  and  one-sixth 
per  cent  upon  its  whole  capital  stock  if  the  line  be  entirely  within 
the  State ;  otherwise  on  so  much  of  its  capital  stock  as  corresponds 
to  the  length  of  the  line  in  the  State. 

The  act  on  the  subject  of  taxation  of  corporations  generally,  is  the 
Act  of  May  17,  1865. 


T. 
MICHIGAN. 

The  provisions  in  relation  to  the  formation  of  telegraph  com- 
panies ;  the  certificate  of  organization ;  the  general  powers  of  the 
association ;  the  places  where  telegraph  lines  may  be  constructed ; 
the  penalty  for  intentional  injury  to  line  ;  and  the  duty  of  the  owner 
or  association  in  the  transmission  of  messages,  —  are  the  same  as 
those  of  the  California  Act  of  April  22,  1850.  Ante,  App.  F. 

The  mode  of  assessing  damages  is  the  same  as  provided  by  the 
above  Act  of  April  22,  1850,  except  that  the  Commissioners  are 
appointed  by  the  Circuit  Court  of  the  district  within  -which  the 
lands  lie ;  and  by  the  Michigan  Act  there  is  no  limitation  as  to  time 
within  which  the  application  must  be  made. 


MICHIGAN.  479 

The  provision  in  relation  to  the  liability  of  stockholders  is  the 
same  as  the  Maryland  Act  (ante,  App.  R.),  except  that  by  the 
Michigan  statute  the  stockholders  are  liable  for  all  the  debts  of 
the  association,  instead  of  to  the  extent  of  twenty-five  per  cent 
of  the  capital  stock. 

Telegraph  companies  shall  make  annual  reports,  stating  the 
amount  of  capital ;  the  amount  actually  paid  in ;  the  investment 
of  any  portion  of  the  earnings  of  the  company  in  its  business ;  the 
amount  of  money  that  has  been  borrowed,  and  which  remains  un- 
paid ;  the  commencement,  general  route,  termination,  and  length 
of  its  line,  and  the  names  of  the  places  through  which  they  pass. 
This  report  shall  be  signed  by  the  president  and  a  majority  of  the 
directors,  and  verified  by  the  oath  of  the  president  or  secretary, 
and  filed  in  the  clerk's  office  of  the  county  where  its  business  is 
conducted,  and  a  duplicate  in  the  office  of  the  Secretary  of  State. 
If  the  company  fails  to  comply  with  their  requirements,  all  the  di- 
rectors shall  be  jointly  and  severally  liable  for  all  the  debts  of  the 
company  that  shall  have  been  contracted  before  the  report  is  made. 

Sec.  2058,  c.  70,  of  Compiled  Laws  of  Michigan  (Compilation 
of  1857)  provides  for  an  annual  tax,  and  how  the  same  is  to  be 
estimated  and  paid. 

The  stock  of  the  corporation  shall  be  deemed  personal  estate, 
transferable  in  such  mode  as  prescribed  by  the  company's  laws ;  but 
the  person  to  whom  it  is  transferred  shall  be  liable  for  the  debts 
of  the  company,  according  to  the  provisions  of  this  act,  until  the 
same  shall  have  been  entered  upon  the  company's  books,  so  as  to 
show  the  names  of  the  persons  by  and  to  whom  transferred,  the 
number  and  designation  of  the  shares,  and  the  date  of  the  transfer ; 
shares  shall  not  be  transferable  until  all  previous  calls  or  assess- 
ments thereon  shall  have  been  paid  in,  or  shall  have  been  declared 
forfeited  for  non-payment  of  calls  thereon. 

The  corporation  shall  not  purchase  stock  in  other  corporations. 

Service  of  legal  process  may  be  upon  the  president  or  secretary ; 
and  if  neither  can  be  found  in  the  county,  then  on  one  of  the  di- 
rectors ;  and  if  none  of  these  officers  can  be  found  in  the  county, 
then  service  may  be  made  by  leaving  a  copy  of  the  process  at  the 
business  office  of  the  company,  in  some  conspicuous  place. 

Books  shall  be  kept  by  the  secretary,  treasurer,  or  other  officers 
of  the  company,  containing  names  of  stockholders,  who  have  become 
such  within  six  years,  alphabetically  arranged ;  showing  their  place 


480  APPENDIX. 

of  residence,  the  number  of  shares  held  by  each,  the  time  when  they 
became  owners  thereof,  and  the  amount  of  stock  paid  in.  This 
book  shall  be  kept  in  the  company's  principal  office  in  every  county 
in  which  the  company  transacts  business,  for  the  inspection  of  stock- 
holders and  creditors.  Every  such  person  shall  have  the  right  to 
make  extracts  from  these  books.  The  books  shall  be  presumptive 
evidence  of  the  facts  stated  in  them,  in  favor  of  the  party  suing 
the  company  or  a  stockholder. 

Every  officer  or  agent  of  the  company  failing  to  make  any  proper 
entry  in  such  book,  or  who  shall  neglect  or  refuse  to  exhibit  the 
same,  or  allow  the  same  to  be  inspected,  and  extracts  taken  there- 
from as  herein  provided,  shall  be  guilty  of  a  misdemeanor,  and  the 
company  shall  forfeit  to  the  party  injured  a  penalty  of  fifty  dollars 
for  every  such  neglect  or  refusal,  or  for  neglecting  to  keep  the  books 
open  for  inspection. 

The  duty  of  the  company  in  the  transmission  of  messages  is  the 
same  as  provided  by  the  California  Act  of  22d  April,  1850. 

The  wilful  or  negligent  disclosure  of  the  contents  of  a  message, 
or  wilful  refusal  or  neglect  to  transmit  or  deliver  the  message,  is  a 
misdemeanor,  punishable  by  imprisonment  in  the  county  jail  not 
exceeding  six  months,  or  fine  not  exceeding  five  hundred  dollars, 
in  the  discretion  of  the  Court ;  and  the  company  shall  be  liable  in 
damages  to  the  party  aggrieved. 

The  State  shall  have  a  lien,  superior  to  all  others,  on  the  line  and 
its  appurtenances,  for  taxes  remaining  unpaid,  and  the  State  Treasurer 
shall  advertise  the  line  and  appurtenances  for  sale  for  the  amount 
of  taxes  remaining  unpaid,  in  some  newspaper  published  in  Detroit, 
by  giving  three  weeks'  notice,  and  sell  the  same ;  provided  the  same 
be  not  paid  at  the  time  of  sale,  and  the  surplus  shall  be  paid  to  the 
company. 

The  legislature  may  alter  or  repeal  this  act,  or  annul  any  corpora- 
tion formed  under  it ;  but  the  alteration  or  repeal  or  dissolution  shall 
not  take  away  or  impair  any  remedy  given  for  or  against  the  corpo- 
ration, or  any  of  its  officers  or  stockholders,  for  any  right  acquired, 
or  liability  which  may  have  previously  occurred.  Compiled  L:nvs 
of  Michigan,  Compilation  of  1857,  c.  70,  Telegraph  Companies. 

The  provisions  of  the  Act  of  Feb.  12,  1853,  in  relation  to  the 
disclosure  of  the  contents  or  nature  of  messages,  or  the  refusal  to 
send  them,  are  the  same  as  provided  by  the  Maryland  statute. 
Ante,  App.  R. 


MINNESOTA.  481 

The  Act  of  March  20,  1863,  authorizes  the  lines  to  be  placed 
under  ground  along  the  highways,  or  across  the  waters  of  the  State  ; 
and  the  former  statute  authorizing  the  assessment  of  damages  shall 
be  construed  to  include  damages  occasioned  by  the  construction  of 
lines  under  ground. 

This  act  amends  the  former  law  in  reference  to  the  assessment 
of  damages,  by  requiring  the  commissioners  to  file  their  report  in 
the  office  of  the  clerk  of  the  Circuit  Court,  and  provides  that  this 
report  may  be  confirmed  by  the  Court  at  any  term,  and  the  Court 
shall  appoint  some  day  when  it  will  consider  the  report  and  ap- 
praisal, and  all  objections  to  the  confirmation  thereof;  notice  of 
this  day  shall  be  given  by  service  on  the  president  or  any  director  of 
the  corporation. 

The  objection  shall  be  as  to  matter  of  substance  and  in  writing, 
and  shall  be  filed  with  the  clerk  of  the  court.  Upon  confirmation 
of  the  report,  in  case  any  damage  be  adjudged  to  the  applicant,  the 
association  shall  pay  the  same  with  the  costs  of  the  appraisal.  In 
case  no  damages  are  given  by  the  commissioners,  and  their  report  is 
confirmed,  the  applicant  shall  thereafter  be  held  to  have  sustained 
no  loss  or  damage  by  reason  of  said  lines.  If  the  report  is  not 
confirmed,  it  shall  not  prejudice  the  right  of  the  applicant  to  renew 
his  application. 

When  the  applicant  owns  or  occupies  lands  lying  in,  or  extend- 
ing into,  more  than  one  county  over  which  the  line  passes,  the  Circuit 
Court  of  any  one  of  those  counties  may  appoint  the  commissioners 
to  assess  the  damages  on  all  such  lands  of  the  applicant,  provided 
the  counties  are  contiguous  to  each  other;  and  when  it  appears 
that  the  applicant  owns  or  occupies  other  lands  contiguous  to  such 
lands,  whether  in  the  county  where  said  court  is  held,  or  otherwise, 
the  commissioners  shall  appraise  the  damages  upon  all  the  contigu- 
ous lands  of  such  person,  in  whatever  county  they  may  lie,  unless 
said  association  shall  otherwise  consent  in  writing. 

u. 

MINNESOTA. 

Every  person  who  shall  wilfully  or  maliciously  break  down, 
injure,  remove,  or  destroy  telegraph  posts  or  wires  shall  be  punished 
by  imprisonment  in  the  territorial  prison  for  not  more  than  three 

31 


482  APPENDIX. 

years,  nor  less  than  six  months,  or  by  fine  not  exceeding  six  hundred 
nor  less  than  fifty  dollars.  Public  Statutes  of  Minnesota,  Compila- 
tion of  1859,  c.  00,  sec.  42. 

Telegraph  companies  may  construct  their  lines  along  the  public 
roads,  so  as  in  no  way  to  interfere  with  the  safety  and  convenience 
of  ordinary  travel  on  these  roads. 

To  unlawfully  injure,  destroy,  or  obstruct  the  use  of  any  tele- 
graph line,  subjects  the  offending  party,  for  the  first  offence,  to  the 
penalty  of  one  hundred  dollars,  to  be  paid  to  the  company,  to  be 
recovered  as  a  debt;  or  be  imprisoned  in  the  county  jail  not  exceed- 
ing three  months ;  and  shall  also  be  liable  for  all  damages :  for  the 
second  offence,  shall  be  liable  to  imprisonment  in  the  county  jail  for 
one  year,  and  to  a  penalty  of  one  hundred  dollars  to  be  paid  to  the 
company,  and  for  all  damages. 

No  one  connected  with  any  telegraph  company  shall  divulge  the 
contents  of  any  message  transmitted,  or  received  for  transmission, 
without  the  consent  of  the  party  sending  or  receiving  the  same; 
and  the  same  inviolable  secrecy  shall  be  maintained  as  is  now  en- 
joined by  the  laws  of  the  United  States  in  reference  to  the  ordinary 
mail  service.  This  act  has  no  reference  to  messages  of  a  public 
nature,  sent  with  a  view  to  publicity. 

If  any  employe  or  officer  of  a  telegraph  company  shall  use  or  cause 
to  be  used,  or  make  known  or  cause  to  be  made  known,  any  message 
transmitted,  or  received  for  transmission,  or  in  any  wise  unlawfully 
expose  another's  business  which  may  come  to  his  possession  as  such 
officer  or  employe,  he  shall  be  subject  to  a  fine  of  not  less  than  one 
hundred  dollars,  or  imprisonment  not  exceeding  six  months,  or  both, 
according  to  the  aggravation  of  the  offence ;  and  also  be  liable  to  the 
party  injured  for  all  damages.  Act  Feb.  3,  1860,  General  Laws  of 
Minnesota,  c.  12,  sees.  1-4. 


V. 

MISSISSIPPI. 

Persons  desiring  to  be  incorporated  as  a  telegraph  company  may 
prepare  a  charter,  containing  a  clear  and  definite  statement  of  the 
purposes  for  which  it  is  created ;  the  names  of  the  persons  to  be 
incorporated ;  the  powers  to  be  exercised ;  the  period  of  its  con- 
tinuance, if  it  be  limited  in  duration,  "  together  with  whatever  else 


MISSOURI.  483 

is  necessary  to  be  stated ; "  and  also  a  description  of  the  proposed 
line,  and  the  localities  to  be  traversed.  This  charter  shall  be  sub- 
mitted to  the  Governor  for  approval,  and,  if  approved,  shall  be 
signed  by  him  and  the  Secretary  of  State,  with  the  great  seal  of  the 
State  affixed. 

Charters  may  be  amended  or  renewed  in  the  same  way.  In  case 
of  renewal,  it  may  be  done  simply  by  a  certificate  of  the  Governor 
that  it  is  renewed,  with  the  great  seal  of  the  State  attached. 

The  charter,  amendment,  or  renewal  must  be  filed  in  the  office  of 
the  Secretary  of  State,  and  a  copy  is  admissible  in  evidence. 

When  so  created,  the  company  may  determine  all  matters  deemed 
by  it  essential  to  a  successful  organization,  elect  officers,  fix  salaries, 
etc.,  and  make  all  necessary  by-laws,  and  impose  all  necessary 
duties.  The  first  meeting  shall  be  called  upon  ten  days'  notice. 
Eevised  Code  of  Mississippi,  c.  35,  sec.  1,  art.  3. 

The  company  shall  be  responsible  for  damages  occasioned  by  the 
erection  of  their  line  and  fixtures,  which  shall  be  assessed  for  the 
permanent  continuance  of  the  same,  and  upon  payment  of  the  dama- 
ges the  right  to  continue  and  use  such  line  and  fixtures  shall  exist 
as  if  by  license  of  the  owner.  Ibid.  sec.  9,  art.  47. 

w. 

MISSOURI. 

There  is  the  same  provision  in  relation  to  the  construction  of  lines 
along  public  roads,  and  across  navigable  streams,  as  in  the  Califor- 
nia Act  of  April  22,  1850  (ante  App.  F.)  except  that  the  present 
act  is  silent  as  to  the  right  to  appropriate  trees  for  the  use  of  the 
line. 

There  is  substantially  the  same  provision  in  relation  to  the  duty 
of  the  trustees  of  a  town,  or  mayor  and  aldermen  of  a  city,  in  desig- 
nating the  location  of  the  company's  line,  etc.,  and  in  reference  to 
the  alteration  of  the  same,  as  contained  in  the  statutes  of  Massachu- 
setts. Ante,  App.  S. 

The  provision  for  the  assessment  of  damages  is  the  same  as  pro- 
vided in  the  Michigan  statute  (ante,  App.  T.),  except  in  this  act  the 
application  is  to  the  County  Court  of  the  county. 

There  are  the  same  provisions  in  relation  to  the  transmission  of 
messages  with  impartiality  and  good  faith,  and  in  their  order,  with 


484  APPENDIX. 

the  same  exceptions,  as  contained  in  the  statutes  of  Connecticut. 
Ante,  App.  G. 

The  telegraph  company  is  liable  for  special  damages  for  negligence 
or  failure  on  the  part  of  its  employes  in  receiving,  copying,  trans- 
mitting, or  delivering  messages. 

For  the  disclosure  of  the  contents,  or  any  part  thereof,  of  such 
messages,  they  shall  be  liable  to  the  sender  of  the  message,  and  also 
to  the  person  to  whom  it  is  addressed,  in  the  sum  of  fifty  dollars  to 
each,  recoverable  before  a  Justice  of  the  Peace,  and  also  for  all 
special  damages. 

The  company  shall  deliver  all  messages,  by  messenger,  to  the 
person  to  whom  addressed,  or  to  his  agent,  upon  payment  of  any 
diaries  that  may  be  due  for  the  same ;  provided  such  person  reside 
within  the  city  or  town  in  which  the  station  is,  or  within  one  mile 
from  the  station ;  and  in  case  he  does  not,  the  company  shall,  if  so 
directed,  and  upon  payment  of  postage,  send  the  same,  by  mail,  to 
the  post-office  designated. 

There  is  the  same  provision  as  to  railroad  companies  as  provided 
by  the  Indiana  statute.  Ante,  App.  L. 

Process  or  notice  may  be  served  upon  any  clerk  or  agent  of  the 
company,  at  any  office  of  the  company.  Act  of  Nov.  17,  1855,  Re- 
vised Statutes  of  Missouri,  c.  156,  Telegraph  Companies. 

X. 

NEVADA. 

There  are  the  same  provisions  in  relation  to  the  disclosure  or 
alteration  of  messages ;  false  or  forged  messages  ;  employe  of  the 
company  using  or  appropriating  information  derived  from  messages ; 
the  neglect  or  postponement  of  messages  out  of  their  regular  order ; 
opening  sealed  envelopes,  or  fraudulent  representations  by  which 
messages  are  procured  with  intent  to  use,  destroy,  or  detain  the 
same ;  wilfully  and  fraudulently  reading,  or  attempting  to  read,  by 
means  of  machine,  etc.,  or  clandestinely  learning  the  contents  of 
messages ;  bribing  telegraph  employes ;  malicious  injury  to  the 
telegraph  ;  the  provision  making  contracts  by  telegraph,  contracts  in 
writing  ;  sending  warrants  for  arrest,  etc.,  by  telegraph,  and  author- 
ity to  make  arrests  under  such  despatches  ;  and  the  obligation  to 
send  despatches  in  the  order  in  which  they  are  received,  —  as  in 
the  California  Act  of  April  18,  1862.  Ante,  App.  F. 


NEVADA.  485 

There  are  the  same  provisions  in  relation  to  the  transmission  and 
service  of  civil  process,  as  provided  by  the  California  Act  of  April 
18,  1862.  Ante,  App.  F. 

By  the  Act  of  Feb.  9,  1866,  any  person,  company,  association,  or 
corporation  may  construct  and  maintain,  or,  if  already  constructed," 
may  maintain,  or,  if  partially  constructed,  may  complete  and  main- 
tain, within  the  State,  a  telegraph  line  or  lines,  by  making  a  cer- 
tificate, and  acknowledging  it  before  some  officer  authorized  to  take 
the  acknowledgment  of  deeds,  setting  forth  the  name  of  the  per- 
son, company,  etc.*,  by  whom  the  line  is  to  be  operated,  the  termini 
of  the  line  within  the  State,  and  a  general  description  of  the  route 
of  the  line,  and  file  the  same  in  the  office  of  the  Secretary  of  State ; 
for  which  such  person,  company,  association,  or  corporation  shall 
pay  the  Secretary  of  State,  for  the  benefit  of  the  Library  Fund,  the 
sum  of  five  dollars,  and  also  twenty -five  cents  for  each  folio  contain- 
ed in  the  certificate.  This  record  shall  give  constructive  notice  to 
all  persons  of  its  contents,  and  the  line,  if  not  completed  at  that 
time,  shall  be  continued  with  all  convenient  despatch  until  com- 
pleted. 

The  lines  may  be  constructed  over  or  through  any  public  or 
private  lands,  and  along  or  across  any  streets,  alleys,  roads,  or 
streams  within  the  State,  provided  they  do  not  obstruct  the  same  ; 
they  may  operate  their  lines,  locate  their  offices,  stations,  etc.,  at 
any  city  or  other  place  along  the  line,  and  collect  charges  for  trans- 
mission of  messages. 

The  rates  of  charges  shall  be  written,  painted,  or  printed,  in  a  plain 
and  legible  manner,  and  posted  in  each  office  on  the  line,  and  if  the 
agents  demand  or  collect  any  greater  charges  than  there  specified, 
they  shall  be  guilty  of  a  misdemeanor,  and  for  each  offence  be  pun- 
ished by  fine  not  exceeding  one  thousand  nor  less  than  one  hundred 
dollars,  and  in  default  of  payment,  may  be  committed  to  jail  until 
paid ;  one-half  of  the  fine  shall  go  to  the  informer,  and  one-half  to 
the  School  Fund  of  the  county  in  which  the  prosecution  is  had ; 
but  in  no  case  shall  the  county  be  responsible  for  costs. 

Messages  must  be  transmitted  in  the  order  of  reception,  under 
penalty  of  one  hundred  dollars  ;  and  all  damages  caused  by  failure, 
to  be  recovered  by  the  person  whose  message  is  postponed. 

There  is  the  same  provision  as  to  arrangement  with  publishers 
of  newspapers  as  provided  by  the  California  Act  of  April  22,  1850. 
Ante,  App.  F. 


486  APPENDIX. 

Precedence  may  be  given  to  official  despatches  for  the  detection 
and  arrest  of  criminals.  Messages  on  public  business  may  be  sent 
by  the  State  free  of  charge. 

Such  telegraph  companies  shall  be  governed  by  the  general  laws 
of  the  State  on  the  subject  of  telegraphs. 

They  shall  have  the  right  of  way  for  their  lines,  and  so  much 
land  as  may  be  necessary  for  that  purpose,  and  may  enter  upon 
private  lands  for  the  purpose  of  examining  and  surveying  the  same ; 
and  if  the  lands  cannot  be  obtained  by  the  consent  of  the  owners, 
they  may  be  appropriated,  upon  compensation  being  made,  by  the 
company  selecting  one  appraiser,  and  the  owner  of  the  land  one ; 
these  two  shall  select  a  third,  and  the  three  shall  appraise  the  laud, 
after  being  first  sworn  to  make  a  true  appraisement. 

If  the  company  tender  the  amount  appraised  to  the  owner,  they 
may  proceed  with  the  construction  of  the  line,  or,  if  constructed,  in 
the  use  of  the  same,  and  may  pass  over  these  and  adjoining  lands, 
for  the  purpose  of  constructing  or  repairing  the  lines,  notwithstand- 
ing such  tender  may  be  refused,  provided  such  tender  shall  always 
be  kept  good  by  them,  and  provided  further,  that  an  appeal  may 
be  taken  by  either  party  from  the  finding  of  the  appraisers,  within 
three  months  after  the  appraisement,  to  the  District  Court  of  the  dis- 
trict in  which  such  lands  are  situated. 

The  owner  of  the  line  shall  keep  the  same  in  as  good  order  and 
repair  as  practicable  ;  and  a  failure  so  to  do  shall  work  a  forfeiture 
of  all  their  rights  and  privileges  ;  the  franchise  may  also  be  declared 
forfeited  by  an  information  in  the  nature  of  a  quo  warranto. 

Y. 

NEW  HAMPSHIRE. 

Any  person  who  shall  wilfully  and  maliciously  injure  or  destroy 
the  property  of  any  telegraph  company  employed  in  the  construction 
or  use  of  their  line  within  the  limits  of  this  State,  and  any  person 
who  shall  aid  or  assist  therein,  shall  be  punished  by  solitary 
imprisonment  not  exceeding  six  months,  and  by  confinement  to 
hard  labor  for  life,  or  a  term  not  less  than  two  years.  New  Hamp- 
shire Compiled  Statutes  of  1853,  c.  229,  Offences  against  Property, 
sec.  4. 


NEW    JERSEY.  487 

Z. 

NEW  JERSEY. 

By  the  Act  of  March  5,  1853,  any  number  of  persons,  consisting 
of  two  or  more,  may  become  an  incorporated  telegraph  company, 
whenever  they  shall  have  subscribed  one-third  of  their  capital  stock, 
and  have  deposited  with  the  Secretary  of  State  a  printed  or  written 
description  of  the  proposed  line,  the  localities  to  be  traversed,  the 
capital  of  the  company,  the  corporate  name  ;  and,  by  complying  with 
the  provisions  of  this  act,  they  may  hold  personal  and  real  estate, 
but  not  more  than  a  quarter  of  an  acre  of  real  estate  at  any  one 
point. 

Whenever  as  much  as  one-third  of  the  capital  stock  has  been 
subscribed,  they  may  let  out  the  contract  for  building  the  line,  or 
build  it  themselves ;  and  may  receive  subscriptions  to  the  capital 
stock,  and  give  receipts  for  instalments  paid  on  the  same. 

A  meeting  of  the  stockholders  shall  be  called,  and  a  president, 
secretary,  treasurer,  and,  at  least,  three  directors  elected,  one-third 
of  whom  shall  be  citizens  and  residents  of  the  State ;  whose  term  of 
ofljce  shall  continue  one  year,  and  until  their  successors  are  elected. 
Each  share  of  stock  represented  will  entitle  its  representative  to 
one  vote ;  but  no  one  person  shall  be  allowed  to  cast  more  than  one 
third  of  the  votes. 

Not  more  than  twenty  cents  shall  be  charged  for  any  message 
not  exceeding  ten  words  in  length ;  and  for  messages  of  a  greater 
number  of  words,  ten  cents  for  every  additional  ten  words,  and  at 
that  rate  for  less  than  ten.  Provided,  however,  if  the  message  is 
intended  for  transmission  over  but  one  company's  line,  it  shall  be 
the  duty  of  any  company  chartered  by  this  act,  on  the  request  of 
any  public  officer  of  the  State,  to  transmit  (confidentially,  if  required) 
messages  on  public  business. 

The  company  shall  pay  into  the  public  treasury  one-half  of  one 
per  cent  on  its  capital  stock. 

Companies  organized  under  this  act  may  maintain  their  line  for 
the  term  of  twenty  years ;  provided  they  have  completed  the  same 
within  three  years  from  the  date  of  filing  the  certificate  in  the  sec- 
retary's office. 

They  shall  establish  at  least  one  office  at  every  forty  miles  trav- 
ersed by  their  line. 


488  APPENDIX. 

Injury  to,  or  destruction  of,  the  use  of  any  line,  shall  subject  the 
offender,  for  the  first  offence,  to  a  penalty  of  one  hundred  dollars, 
to  be  recovered  by  the  company,  and  all  damages ;  and,  for  the  sec- 
ond offence,  to  imprisonment  in  the  county  jail  for  not  exceeding  one 
year. 

The  company  may  establish  their  lines  upon  the  public  roads,  by 
obtaining  the  consent,  in  writing,  of  the  owner  of  the  soil,  but  so  as 
not  to  obstruct  public  travel ;  and  the  use  of  the  public  streets  in  the 
incorporated  cities  and  towns  shall  be  subject  to  such  regulations 
and  restrictions  as  may  be  imposed  by  the  corporate  authorities. 

Stockholders  shall  not  be  liable  beyond  their  subscriptions. 

Tin's  act  does  not  apply  to  existing  corporations,  or  any  lines 
already  in  operation.  Nixon's  Digest,  1861,  Telegraphs,  sec.  1—9. 

There  is  the  same  provision  in  relation  to  the  disclosure  of  mes- 
sages as  provided  by  the  Minnesota  statute,  ante,  App.  U;  and  for 
the  unlawful  disclosure  of  messages  the  offending  party  shall,  for 
every  offence,  be  subject  to  a  fine  of  not  less  than  one  hundred  dol- 
lars, or  imprisonment  not  exceeding  six  months,  or  both,  according 
to  the  aggravation  of  the  offence.  Act  March  30,  1855. 


AA. 

NEW   YORK. 

By  the  Revised  Statutes,  edition  of  1859,  c.  18,  title  17,  the 
provisions  in  relation  to  the  organization  of  the  company,  power  to 
hold  real  estate,  construction  of  lines  along  highways,  penalty  for 
wilful  trespass,  and  as  to  order  of  transmission  of  messages,  are  the 
same  as  the  California  Act  of  April  22,  1850.  Ante,  App.  F. 

The  assessment  of  damages  to  landowners  is  the  same  as  provided 
by  the  Michigan  statute,  ante,  App.  T. ;  except  that  by  this  act  the 
commissioners  are  appointed  by  the  County  Court  of  the  county, 
and  there  are  to  be  five  commissioners. 

There  is  the  same  provision  for  the  increase  of  capital  stock  as 
provided  by  the  California  Act  of  April  22,  1850.  Ante,  App.  F. 

The  provision  in  relation  to  the  liability  of  stockholders,  as  pro- 
vided by  the  Michigan  statute  (ante,  App.  T.),  except  that  the  lia- 
bility of  the  stockholder  shall  not  exceed  twenty-five  per  cent  of  his 
stock. 

There  is  also  the  same  provision  as  to  forwarding  messages  as 


NEW    YORK.  489 

provided  by  the  Michigan  statute,  with  the  additional  stipulation 
that  the  company  shall  not  be  required  to  receive  and  transmit 
despatches  from  or  for  any  other  company  owning  a  line  parallel 
with,  or  doing  business  in  competition  with,  the  line  over  which  the 
message  is  to  be  sent. 

Any  company  using  Morse's  telegraph  may  organize,  under  this 
act,  by  filing  in  the  office  of  the  Secretary  of  State  a  resolution  of 
its  board  of  directors,  signed  and  certified  by  the  officers  of  the  com- 
pany, of  its  desire  so  to  organize,  and  by  publishing  notices  to  this 
effect,  three  months  previous  to  such  organization,  in  some  one 
newspaper  in  the  cities  of  New  York,  Albany,  and  Buffalo,  provided 
two-fifths  of  the  stockholders  do  not  dissent  therefrom ;  and  any 
stockholder  may,  by  giving  thirty  days'  notice  to  the  officers,  or  any 
of  them,  at  any  time  before  the  organization,  refuse  to  go  into  such 
organization,  and  he  shall  be  entitled  to  receive  from  the  company 
the  full  value  of  his  stock. 

It  is  a  misdemeanor,  punishable  with  imprisonment  in  the  county 
jail  or  workhouse  for  not  less  than  three  mouths,  or  fine  not  exceed- 
ing five  hundred  dollars,  in  the  discretion  of  the  court,  to  wilfully 
divulge  the  contents  or  the  nature  of  messages,  or  wilfully  to 
refuse  or  neglect  to  transmit  or  deliver  the  same. 

By  sec.  15,  the  directors  or  trustees  of  any  company  incorporated 
under  the  Act  of  April  12, 1848,  may  at  any  time,  with  the  consent 
of  the  persons  owning  two-thirds  of  the  capital  stock,  extend  their 
line  of  telegraph,  or  may  construct  branch  lines  to  connect  with  their 
main  line,  or  may  unite  with  any  other  incorporated  company. 

By  sec.  16,  any  number  of  persons  may  associate  for  the  purpose 
of  establishing  telegraph  lines,  whether  within  or  partly  beyond  the 
State ;  or  for  the  purpose  of  owning  any  interest  in  telegraph  lines, 
or  grants  therefor,  upon  the  terms  and  conditions,  and  subject  to  the 
liabilities,  prescribed  by  the  Act  April  12,  1848;  and  shall  become 
a  body  corporate,  and  shall  have  the  powers,  and  be  subject  to  the 
provisions,  of  that  act,  and  the  several  acts  amending  it,  not  incon- 
sistent herewith.  And  any  telegraph  company  using  or  owning 
any  line  wholly  or  partly  within  the  State,  may  become  a  body  cor- 
porate, and  entitled  to  the  provisions  herein,  on  filing  in  the  office 
of  the  Secretary  of  State  a  certificate  of  a  resolution  adopted  by  a 
majority  of  its  board  of  directors  to  organize  under  this  act,  which 
shall  contain  the  specifications  required  by  the  said  recited  act,  and 
shall  be  proved,  etc.,  as  therein  required.  1853,  c.  47,  sec.  1. 


490  APPENDIX. 

The  association  may  construct  lines  over,  across,  or  under  the 
public  roads  and  streets,  or  waters,  in  the  State  ;  and  upon,  through, 
or  over  any  other  land,  subject  to  the  right  of  the  owner  to  com- 
pensation. 

In  case  of  disagreement,  the  landowner  or  association  may  apply 
to  the  County  Court  of  the  county  where  the  lands  are,  and  the 
Court,  after  twenty-one  days  from  the  filing  of  the  petition,  and 
notice  thereof,  shall  appoint  five  persons  to  assess  the  damages,  as 
provided 'in  that  act;  and  they  shall  determine  the  annual  rent  or 
compensation  to  be  paid,  or  a  sum  in  gross  in  lieu  thereof,  where  the 
fixtures  are  to  remain  permanently.  Ibid.  sec.  2. 

Where  the  company  owns  a  line,  partly  within  and  partly 'beyond 
the  State,  they  shall  render  a  true  report  of  the  costs  of  the  works 
within  the  State ;  and  the  stock  of  such  company,  in  an  amount 
equal  to  such  cost,  or  the  dividends  thereof,  shall  be  subject  to  tax- 
ation, in  the  same  manner  and  at  the  same  rate  as  other  incorporated 
companies  are  subject.  Ibid.  sec.  3. 

The  liability  of  any  share  or  stockholder  shall  only  apply  to  the 
amount  due  by  any  such  share  or  stockholder  in  the  company,  and 
unpaid  on  or  for  any  such  share  or  stock.  Ibid.  sec.  4. 

The  proprietors  of  the  patent  right  of  Morse's  telegraph  may  con- 
struct lines  from  point  to  point,  and  across  the  navigable  waters,  of 
the  State,  but  so  as  not  to  injuriously  interrupt  navigation,  or  im- 
pair private  rights.  This  shall  not  authorize  the  construction  of  any 
bridge. 

It  is  a  misdemeanor,  punishable  by  fine  and  imprisonment,  to 
knowingly  and  wilfully  injure  or  destroy  these  lines,  or  any  property 
connected  therewith.  This  act  may  be  amended  or  repealed. 
c.  20,  title  10. 

By  Act  of  April  22,  1862,  c.  425,  p.  261,  (see  Supplement 
of  1863  to  Revised  Statutes,  Telegraph  Companies),  any  tele- 
graph company,  incorporated  under  the  Act  of  April  12,  1848,  may 
construct,  own,  and  use  any  line  or  lines  not  described  in  their  ori- 
ginal certificate  of  organization,  whether  wholly  or  partly  within 
the  State ;  and  may  join  with  any  other  company  in  constructing, 
leasing,  owning,  or  using  such  lines,  and  may  own  or  hold  any 
interest  in  any  such  lines,  upon  the  terms  and  conditions  prescribed 
in  said  act,  so  far  as  they  are  applicable,  pursuant  to  the  provisions 
of  this  act. 

In  such  cases  as  provided  in  the  foregoing  sections,  such  company 


OHIO.  491 

shall,  within  one  year  after  constructing  or  becoming  such  owner  or 
lessee,  etc.,  file  in  the  office  of  the  Secretary  of  State  a  certificate, 
describing  the  general  route  of  the  line,  designating  the  extreme 
points  connected  thereby,  as  provided  in  sec.  2  of  the  act  hereby 
amended ;  this  certificate  shall  be  executed  under  seal  by  at  least 
two-thirds  of  the  directors  of  such  corporation,  and  acknowledged  by 
them,  as  provided  by  that  act. 

Any  company  who,  before  the  passing  of  this  act,  may  have  pur- 
chased, constructed,  or  leased,  or  joined  with  any  other  company  in 
so  doing,  any  lines  of  telegraph  not  described  in  their  original  cer- 
tificate, may,  within  one  year  after  the  passage  of  this  act,  make 
and  file  in  the  secretary's  office  such  certificate  as  above  provided ; 
and  upon  so  doing,  their  acts,  if  otherwise  consistent  with  this 
act,  shall  be  valid  and  effectual,  saving  all  existing  rights  of  other 
persons. 

BB. 
NORTH  CAROLINA. 

There  is  no  general  provision  by  statute  in  this  State  upon  the 
subject  of  telegraphs. 

cc. 

OHIO. 

The  telegraph  companies  in  the  State  are  organized  by  filing  a 
certificate  in  the  office  of  the  Secretary  of  State,  stating  the  name 
of  the  company,  the  termini  of  its  line,  and  the  counties  through 
which  it  shall  pass,  the  capital  stock  and  amount  of  each  share. 
They  may  thereupon  construct  such  line  or  lines  as  are  designated  in 
the  certificate,  and  be  a  body  corporate  by  the  name  adopted  in  the 
certificate. 

The  books  shall  be  opened  for  subscription  to  the  capital  stock ; 
and,  when  ten  per  centum  shall  have  been  subscribed,  a  meeting 
shall  be  called,  by  thirty  days'  notice,  published  in  a  newspaper  of 
each  county  through  which  the  line  passes,  at  which  meeting  shall 
be  elected  three  directors,  who  shall  continue  in  office  until  the  next 
annual  meeting. 

There  shall  be  a  meeting  of  the  stockholders  annually,  at  a  place 
to  be  designated  by  these  three  directors,  when  a  president,  secre- 


492  APPENDIX. 

ary,  treasurer,  and  three  directors  shall  be  chosen,  who  shall  hold, 
until  the  next  annual  meeting,  and  until  their  successors  are 
elected. 

Special  meetings  may  be  called  by  the  directors. 

Regulations  and  by-laws  may  be  adopted  at  the  annual  meetings. 

The  company  may  construct  its  line  from  point  to  point,  and 
along  the  public  roads,  but  so  as  not  to  incommode  the  public-. 

Two  or  more  companies  may  consolidate  themselves  into  a  single 
corporation,  by  an  agreement  entered  into  by  the  directors  of  the 
companies,  under  the  corporate  seal  of  each,  prescribing  the  terms 
and  conditions  thereof;  the  mode  of  carrying  the  same  into  effect ;  the 
name  of  the  new  corporation  ;  the  number  of  directors,  not  to  exceed 
thirteen  ;  the  time  and  place  of  holding  the  first  election  of  directors  ; 
the  number  of  shares  of  capital  stock  in  the  new  corporation,  and 
amount  of  each  share;  the  manner  of  converting  the  shares  of 
capital  stock  of  each  company  into  the  shares  of  the  consolidated 
company ;  the  manner  of  compensating  stockholders  who  refuse  to 
so  convert  their  stock,  —  with  such  other  details  as  may  be  agreed 
upon.  Such  new  corporation  shall  possess  all  the  powers,  and  be 
subject  to  all  the  restrictions,  of  the  two  or  more  corporations.  The 
stockholders  of  the  respective  companies  who  refuse  to  convert  their 
stock  shall  be  paid  their  cash  value,  if  they  so  require,  before  the 
consolidation. 

Such  agreement  of  the  directors  shall  not  be  deemed  the  agree- 
ment of  the  respective  companies  until  ratified  by  the  vote  of  at 
least  two-thirds  in  amount  of  the  stockholders  present  at  the  meet- 
ings of  each  company  to  be  called  for  that  purpose.  Each  share  of 
capital  stock  is  entitled  to  one  vote  cast  either  in  person  or  by 
proxy.  A  notice  of  at  least  thirty  days,  specifying  the  time,  place, 
and  object  of  this  meeting,  sent  to  each  stockholder  by  mail  whose 
residence  is  known,  and  also  published  in  a  newspaper  in  at  least 
one  city  or  town  where  the  corporation  has  its  principal  office,  to 
be  published  for  three  successive  weeks,  shall  be  given  of  this 
meeting. 

When  this  agreement  has  been  ratified,  and  a  duplicate  filed  in 
the  office  of  the  Secretary  of  State,  the  respective  corporations  shall 
be  merged  in  the  new  corporation,  to  be  known  by  the  corporate 
name  adopted  in  the  agreement.  Upon  the  election  of  the  first  board 
of  directors,  all  the  franchises  and  other  property  of  the  respective 
corporations  shall  be  vested  in  the  new  corporation  in  the  same 


OHIO.  493 

manner  and  with  the  same  powers  as  when  vested  in  the  original 
corporations ;  and  the  titles  and  the  real  estate  of  each  corporation 
shall  not  be  deemed  to  revert  or  be  impaired  thereby.  Provided, 
that  all  the  rights  of  the  creditors  of  the  respective  corporations, 
and  all  lines,  shall  be  preserved  unimpaired,  and  the  respective 
corporations  shall  continue  to  exist  as  far  as  may  be  necessary  to 
enforce  the  same.  All  the  liabilities  of  the  respective  corporations 
shall  become  the  liabilities  of  the  new.  Statutes  of  Ohio,  Swan  & 
Critchfield's  Revision  of  1860,  c.  29,  sees.  44-48. 

By  the  Act  of  April  14,  1861,  the  Governor  of  the  State  may 
cause  to  be  administered  to  all  telegraph  operators  in  the  State  an 
oath  to  support  the  Constitution  of  the  United  States,  and  of  the 
State  of  Ohio,  and  that  they  will  not  knowingly  use,  or  allow  to  be 
used,  the  telegraph  lines  for  the  purpose  of  conveying  treasonable 
messages. 

Nor  shall  they  enlist  in  the  militia  of  this  State,  nor  the  army  of 
the  United  States,  without  the  permission  of  the  Governor. 

For  the  law  in  relation  to  assessment  of  taxes  of  telegraph  com- 
panies, see  Acts  May  1,  1862,  and  Feb.  24,  1863. 

By  the  Act  of  May  1,  1862,  telegraph  companies  may  enter  upon 
any  lands,  whether  held  by  individuals  or  by  corporations,  for  the 
purpose  of  making  preliminary  examinations  and  surveys,  with  a 
view  to  the  location  of  their  lines ;  and  may  appropriate  so  much  of 
such  lands  as  may  be  necessary  for  their  works.  They  shall  not  be 
authorized,  without  the  consent  of  the  owner  in  writing,  to  enter  any 
dwelling,  warehouse,  barn,  or  any  building  connected  with  them,  or 
any  other  building  erected  for  any  agricultural,  commercial,  or 
scientific  purpose,  or  any  building  belonging  to  railroad  companies ; 
or  to  use  or  appropriate  any  part  thereof;  nor  shall  they  be 
authorized  to  erect  any  telegraph  pole,  pier,  or  abutment  in  any 
yard  or  inclosure  within  which  any  such  edifice  may  be  situated, 
nor  to  erect  their  works  so  near  thereto  as  to  cause  injury.  The 
company  shall  not  be  authorized  to  injure  or  destroy  any  fruit  or 
ornamental  trees. 

Where  lands  sought  to  be  appropriated  are  held  by  any  corpora- 
tion, the  right  of  the  telegraph  company  to  appropriate  them  shall 
be  limited  to  such  use  as  shall  not  in  any  material  degree  interfere 
with  the  practical  uses  to  which  the  corporation  has  the  right  to 
put  such  lands  under  its  charter ;  nor  shall  the  telegraph  company 
place  any  of  their  fixtures  so  close  to  any  other  line  of  telegraph 


494  APPENDIX. 

as   to   interfere   materially   with   the    practical   working    of   such 
telegraph. 

The  company  shall  be  limited  in  the  use  of  lands  of  railroad  com- 
panies for  the  permanent  structure  of  their  lines,  to  the  lands  which 
lie  within  five  feet  of  the  outer  limits  of  the  right  of  way  of  the 
railroad  company,  whenever  it  is  practicable  to  erect  their  lines 
within  these  limits. 

Where  the  company  seeks  to  appropriate  lands  outside  of  these 
limits,  the  statement  shall  set  forth  the  facts  showing  such  impracti- 
cability, and  designate  either  by  a  survey  and  map,  or  by  reference 
to  monuments,  or  by  other  means  of  easy  identification,  the  exact 
spot  where  they  seek  to  establish  the  line ;  and,  if  controverted  by 
the  railroad  company,  the  Probate  Court  shall  in  all  instances  deter- 
mine whether  the  erection  of  the  lines  at  the  point  indicated  will 
interfere  materially  with  the  practical  uses  to  which  the  railroad 
company  are  authorized  to  appropriate  the  lands ;  and,  if  satisfied 
that  it  will  so  interfere,  shall  reject  the  application,  or  require  the 
structure  to  be  erected  at  such  other  point  as  the  Court  shall  direct ; 
but  nothing  herein  shall  authorize  the  company  to  condemn  the  use 
of  the  track  or  rolling  stock  of  the  railroad  for  the  purpose  of  trans- 
porting poles,  materials,  or  employe's  of  the  company,  or  for  any 
other  purpose.  Where  lands  lie  in  more  than  one  county,  damages 
may  be  assessed  in  one  proceeding  in  the  court  of  any  one  of  the 
counties  where 'any  of  the  lands  lie,  in  respect  of  all  such  lands. 

Where  lands  are  subject  to  the  easement  of  any  street,  alley,  or 
other  public  way  within  any  city  or  incorporated  village,  the  mode 
of  use  shall  be  such  as  is  agreed  upon  between  the  municipal 
authorities  and  the  telegraph  company ;  in  case  they  cannot  agree, 
or  the  municipal  authorities  unreasonably  delay  to  enter  into  such 
agreement,  the  Probate  Court  of  the  proper  county,  in  a  proceeding 
to  be  instituted  for  that  purpose,  shall  designate  in  what  mode  the 
line  shall  be  constructed  along  such  highway  so  as  not  to  incommode 
the  public.  The  municipal  corporation  shall  receive  no  more  com- 
pensation from  the  company  than  is  necessary  to  restore  the  pave- 
ment to  its  former  state. 

Any  incorporated  telegraph  company  may  construct  lines,  whether 
described  in  their  original  certificate  of  organization  or  not,  and 
when  the  line  lies  either  wholly  or  partly  within  the  State  ;  and  may 
join  with  any  other  company  in  conducting,  leasing,  owning,  or  using 
such  line  or  lines,  upon  such  terms  as  may  be  agreed  upon  between 


OHIO.  495 

the  directors  or  managers  of  the  respective  corporations ;  or  may 
hold  any  interest  in  such  lines,  or  become  lessees  of  such  lines,  upon 
such  terms  as  may  be  agreed  upon. 

It  is  a  misdemeanor,  punishable  with  fine  not  exceeding  five 
hundred  dollars,  or  imprisonment  in  the  penitentiary  not  exceeding 
one  year,  or  both,  to  unlawfully  and  intentionally  injure,  molest,  or 
destroy  any  of  the  property  of  a  telegraph  company. 

There  is  the  same  provision  in  relation  to  the  transmission 
of  messages  with  impartiality  and  good  faith  as  provided  by  the 
Maryland  statute  (ante,  App.  R.),  with  this  additional  provision,  that 
where  the  sender  desires  to  have  the  message  forwarded  over  the 
lines  of  other  companies,  whose  termini  are  respectively  within  the 
limits  of  the  usual  delivery  of  such  companies,  to  the  place  of  final 
destination,  and  shall  tender  to  the  company  the  usual  charges  to 
the  place  of  destination,  it  shall  be  the  duty  of  the  company  to  re- 
ceive the  same,  and,  without  delaying  the  message,  to  pay  the  suc- 
ceeding line  the  necessary  charges  for  the  remaining  distance ;  and 
the  succeeding  line  shall  forward  the  message  in  the  same  manner 
as  if  the  sender  had  applied  to  them  in  person,  and  paid  them  the 
usual  charges ;  and  for  omitting  to  do  so  they  shall  be  liable  to  a  like 
penalty  of  one  hundred  dollars. 

It  is  the  duty  of  the  operator  or  other  employe  plainly  to  inform 
the  sender  when  the  line  is  not  in  working  order,  or  that  the 
messages  already  in  hand  for  transmission  will  prevent  the  appli- 
cant's message  from  being  sent  within  the  time  required ;  and,  if 
required,  he  must  write  these  statements  upon  the  despatch  offered 
for  transmission  ;  and  for  omitting  to  do  so,  or  intentionally  giving 
false  information,  such  employe  and  the  company  also  shall  incur 
the  above  penalty. 

There  is  substantially  the  same  provision  in  relation  to  the  trans- 
mission of  messages  in  the  order  of  their  reception,  etc.,  as  provided 
by  the  Connecticut  statute  (ante,  App.  G.). 

No  company  shall  be  required  to  deliver  messages  at  a  greater 
distance  from  the  station  at  which  they  are  received  than  required 
by  their  published  regulations.  If  the  applicant  direct  the  message 
to  be  mailed  at  the  place  of  delivery,  and  offer  to  pay  the  postage, 
the  company  shall  affix  the  necessary  postage  stamp,  and  mail  the 
despatch  in  time  for  the  first  mail  that  shall  depart  for  the  place  of 
final  destination,  within  a  reasonable  time  after  the  message  has 


496  APPENDIX. 

been  received  at  the  office  of  delivery ;  and  for  omission  so  to  do  the 
company  shall  be  liable  to  the  above  penalty. 

It  is  a  misdemeanor,  punishable  by  imprisonment  not  exceeding 
three  months  in  county  jail,  or  fine  not  exceeding  five  hundred 
dollars,  in  any  person  connected  with  the  company,  to  divulge  the 
contents  of  messages  intrusted  to  them  for  transmission  or  delivery, 
or  to  refuse  or  neglect  to  transmit  or  deliver  the  same  with  a  view 
to  injure  the  sender  or  intended  receiver,  or  to  benefit  himself  or 
any  other  person. 

It  is  a  misdemeanor,  punishable  as  above,  to  knowingly  transmit 
false  communication  with  intent  to  injure  any  one,  or  to  speculate 
in  any  article  of  merchandise,  commerce,  or  trade,  or  with  intent 
that  another  may  do  so,  or  to  knowingly  send  or  deliver  forged  de- 
spatches, or  not  authorized  by  the  person  whose  name  purports  to  be 
signed  thereto. 

If  any  corporation  desire  to  use  their  lands,  upon  which  are  the 
lines  of  a  telegraph  company,  it  shall  be  the  duty  of  the  telegraph 
company  to  remove  their  poles,  fixtures,  etc.,  to  such  convenient 
place  as  may  be  designated  by  the  corporation,  upon  reasonable 
notice  given  in  writing,  and  to  erect  their  lines  in  such  place  so  as 
not  to  interfere  with  the  practical  use  to  which  such  corporation  is 
entitled  to  put  its  grounds. 

If  impracticable  to  erect  line  on  such  other  lands  of  the  corpora- 
tion, the  telegraph  company  may  appropriate  adjoining  lands  by  a 
new  proceeding  for  that  purpose. 

If  a  corporation  is  liable  to  suffer  damage  from  the  decayed  or 
defective  works  of  the  telegraph  company,  they  may  require  the 
company  to  repair  the  same  upon  five  days'  notice ;  and,  if  the  dunurr 
is  imminent,  the  corporation  may  repair  them  at  once  at  the  expense 
of  the  telegraph  company. 

DD. 
OREGON. 

The  provision  in  relation  to  the  right  of  telegraph  companies  to 
erect  their  works  upon  public  highways  and  across  streams,  is  the 
same  as  provided  by  the  statute  of  Iowa.  Ante,  App.  M. 

If  the  person  over  whose  land  they  pass,  claims  more  damage  than 
the  company  is  willing  to  pay,  each  party  shall  select  one  disinter- 


PENNSYLVANIA.  497 

ested  person,  and  these  shall  select  a  third,  all  of  whom  shall  con- 
stitute a  board  of  appraisers,  who  shall  proceed  together  to  the 
premises,  and  make  their  appraisement ;  and  the  award  of  damages 
by  a  majority  of  said  board  shall  be  final.  This  award  shall  be  in 
writing,  signed  and  sworn  to  by  the  appraisers  agreeing  thereto,  and 
shall  be  filed  in  the  office  of  the  clerk  of  the  County  Court. 

The  claim  for  damages  by  a  private  individual  must  be  made 
within  twelve  months  from  the  time  the  line  is  erected  on  his 
land. 

Every  telegraph  company  shall,  on  application  of  any  officer  of 
the  State  or  United  States,  in  case  of  any  war,  insurrection,  riot,  or 
other  civil  commotion,  or  resistance  of  public  authority,  for  the  pre- 
vention of  crime,  or  arrest  of  persons  charged  or  suspected  there- 
with, give  to  the  communication  of  such  officer  immediate  despatch, 
at  the  price  of  ordinary  communications  of  the  same  length.  And 
if  the  officer,  operator,  or  other  employe  of  the  company  shall  re- 
fuse or  wilfully  omit  to  transmit,  or  shall  designedly  alter  or  falsify 
the  same,  for  any  purpose  whatsoever,  he  may  be  fined  and  impris- 
oned at  the  discretion  of  the  Court. 

There  are  the  same  provisions  in  the  statutes  of  Oregon  as  em- 
bodied in  the  California  Act  of  April  18,  1862.  Ante,  Appendix  F. 
Laws  of  Oregon,  Compilation  of  1866,  c.  54,  sec.  1-27. 

EE. 
PENNSYLVANIA. 

Before  any  act  incorporating  a  telegraph  company  shall  take 
effect,  a  tax  of  one  hundred  dollars  shall  be  paid  into  the  State 
Treasury  upon*  such  act  of  incorporation,  in  lieu  of  the  enrolment 
tax.  Purdon's  Digest  of  Pa.  Laws,  1861,  of  the  Enrolment  Tax, 
sec.  28. 

There  is  the  same  provision  in  relation  to  the  injury  or  destruc- 
tion of  the  property  of  the  telegraph  company  as  provided  by  the 
California  Act  of  April  22,  1850.  Ante,  App.  F. 

It  is  a  misdemeanor,  punishable  by  fine  not  exceeding  five  hun- 
dred dollars,  or  imprisonment  not  exceeding  six  months,  or  both,  to 
use  or  cause  to  be  used,  or  make  known  or  cause  to  be  made 
known,  the  contents  of  any  message,  or  any  part  thereof,  sent  from, 

32 


498  APPENDIX. 

or  received  at,  any  telegraph  office  ;  or  to  unlawfully  expose  another's 
business  or  secrets,  or  in  any  wise  impair  the  value  of  any  corre- 
spondence so  sent  or  received. 

It  is  a  misdemeanor,  punishable  by  fine  not  exceeding  five  hun- 
dred dollars,  or  imprisonment  not  exceeding  twelve  months,  or  both, 
to  in  any  way  attempt  to  lead  from  its  uses,  or  to  make  use  of  the 
electric  current,  for  the  purpose  of  communicating,  "  telegraphically," 
from  one  station  of  the  line  to  another,  or  to  a  connecting  tele- 
graph line. 

It  is  a  misdemeanor,  punishable  as  above,  to  knowingly  send,  or 
cause  to  be  sent,  by  telegraph,  any  false  or  forged  message,  as  from 
such  office,  or  as  from  any  person,  knowing  the  same  to  be  false, 
forged,  or  counterfeited,  with  intent  to  deceive  or  defraud  any  per- 
son or  body  corporate.  Purdon's  Digest,  1861,  Crimes,  E,  sec. 
80,  156,  185. 

Messages  shall  be  forwarded  in  their  regular  order,  under  a  pen- 
alty of  one  hundred  dollars,  one-half  to  the  party  suing  for  the  same 
and  the  other  half  to  the  State.  In  these  suits,  notice  served  on  the 
president  of  the  company  is  sufficient. 

There  is  the  same  provision  in  relation  to  secrecy  in  the  trans- 
mission of  messages  as  contained  in  the  Minnesota  statute  (ante, 
App.  U),  except  that  the  present  act  contains  no  provision  for  pun- 
ishing this  offence. 

Original  messages,  except  those  intended  for  publication,  shall  be 
preserved  for  at  least  three  years,  in  order  to  produce  the  same 
when  required  in  courts  of  justice,  or  committees  of  the  legislature. 
There  is  the  same  penalty  for  violating  this  provision  as  the  pro- 
vision in  relation  to  forwarding  messages;  but  it  is  provided  that  con- 
fidential communications  between  attorney  and  client  so  transmitted 
shall  in  no  case  be  divulged.  Purdon's  Digest,  1861",  Telegraphs. 

FF. 

RHODE  ISLAND. 

The  wilful  cutting  or  breaking  of  telegraph  poles  or  wires,  or 
other  act  interrupting  telegraph  communication,  or  attempt  so  to  do, 
shall  be  punished  by  imprisonment  not  exceeding  six  months,  or 
fine  not  exceeding  five  hundred  dollars. 


TENNESSEE.  499 

GG. 
SOUTH  CAROLINA. 

There  are  no  general  provisions  by  statute  in  this  State  upon  the 
subject  of  telegraphs. 

HH. 
TEXAS. 

There  are  no  general  statutes  on  the  subject  of  telegraphs  in  this 
State. 

II. 

TENNESSEE. 

Any  person  or  company  may  construct  telegraph  lines  along  the 
public  highways  and  streets,  across  rivers,  arid  over  State  lands 
free  of  charge,  so  as  not  to  obstruct,  etc. 

If  upon  lands  of  individuals,  if  not  constructed  on  his  land  by  con- 
tract, compensation  must  be  made.  The  claim  for  damages  must  be 
made  within  twelve  months  after  the  lines  are  erected. 

In  consideration  of  the  right  of  way  over  public  property,  every 
telegraph  company  shall,  in  case  of  war,  insurrection,  or  civil  com- 
motion of  any  kind,  and  for  the  arrest  of  criminals,  give  immediate 
despatch,  at  the  usual  rates,  to  any  messages  connected  therewith 
of  any  officer  of  this  State,  or  the  United  States. 

Messages  shall  be  transmitted  in  their  regular  order,  without 
unreasonable  delay,  and  correctly,  and  shall  be  kept  strictly  confi- 
dential ;  and  the  violation  of  these  requirements  is  a  misdemeanor  in 
the  employe,  and  the  company  shall  be  liable  in  damages. 

The  wilful  destruction  or  injury  of  the  poles,  wires,  or  fixtures 
is  a  misdemeanor ;  so  also  to  intercept,  without  authority,  messages 
transmitted  by  telegraph. 

It  is  a  misdemeanor  to  violate  any  of  the  foregoing  provisions,  and 
the  company,  and  the  offender  also,  shall  be  liable  in  damages  to  the 
party  aggrieved. 

.  Damages  to  individuals,  occasioned  by  the  erection  of  telegraph 
works  on  their  lands,  are  assessed,  by  the  appointment,  by  the  Cir- 
cuit Court  of  the  county,  of  a  jury  of  view,  consisting  of  five  persons, 
who  shall  go  upon  the  land  and  appraise  the  damages,  and  set  apart 


500  APPENDIX. 

a  sufficient  quantity  of  land  for  the  purpose  intended.  In  estimating 
the  damages,  the  jury  shall  give  the  value  of  the  land  without  de- 
duction, but  incidental  benefits  may  be  considered  in  estimating 
incidental  damages. 

If  no  objection  is  made,  the  report  of  this  jury  shall  be  confirmed 
by  the  Court,  and  the  land  decreed  to  the  company  upon  payment  of 
the  damages  and  costs. 

Either  party  may  object  to  the  report ;  and  in  such  case,  upon 
good  cause  shown,  it  may  be  set  aside,  and  a  new  writ  of  inquiry 
awarded,  or  appeal  to  a  regular  jury,  and  have  a  trial  in  the  usual 
mode  in  the  court. 

If  the  company  enter  upon  lands  to  make  preliminary  examin- 
ations and  surveys,  they  are  only  liable  for  the  actual  damage  done. 

The  land  shall  not  be  permanently  occupied  for  the  works  of  the 
company,  until  damages  assessed  and  costs  have  been  paid ;  or,  if 
appeal  has  been  taken,  until  bond  has  been  given  to  abide  by  the 
final  judgment.  If,  however,  the  company  has  actually  taken  the 
land,  the  owner  may  apply  for  assessment  of  damages ;  but,  in  such 
case,  must  institute  proceedings  within  twelve  months  after  the  land 
was  actually  taken.  Code  of  Tennessee,  1858,  of  Telegraphs,  sec. 
1316-1324  and  1325-1348. 

By  Act  of  March  13,  1868,  sec.  5,  telegraph  companies  are  re- 
quired to  take  out  a  semi-annual  license,  anjd  pay  therefor  a  tax  of 
five  hundred  dollars. 

JJ. 
VERMONT. 

Telegraph  companies  may  construct  their  lines  upon  the  public 
roads,  so  as  not  to  incommode  the  public.  If  there  be  difficulties  in 
the  way  of  their  construction  in  the  above  manner,  the  selectmen 
of  the  towns  where  the  difficulty  arises  shall,  upon  application,  de- 
termine how  it  shall  be  obviated ;  and  shall  certify  their  decision,  tp 
be  recorded  in  the  town  clerk's  office. 

Where  the  line  passes  along  the  streets  of  any  village,  or  near 
the  residence  of  any  person,  application  may  be  made  to  the  select- 
men of  such  towri,  "  or  mayor  of  any  city,  or  principal  officers  of 
any  incorporated  village,  as  the  case  may  be,"  who  shall  determine 
through  what  streets  the  line  shall  pass,  and  in  what  manner  incon- 
venience to  residences  shall  be  obviated ;  and  such  decisions  shall  be 


VIRGINIA.  501 

final.  These  officers  shall  be  allowed  one  dollar  a  day  for  their  ser- 
vices, and  all  expenses  shall  be  paid  by  the  company. 

Damages  to  the  owners  of  lands,  by  reason  of  the  erection  of  the 
lines,  shall  be  appraised  by  the  selectmen  of  the  town,  or  mayor  of 
any  city,  in  which  the  lands  are,  which  shall  be  paid  by  the  com- 
pany before  any  erection  shall  be  made ;  and  their  decision  shall  be 
final,  upon  notice  given. 

The  wilful  injury  or  destruction  of  any  telegraph  line,  or  appur- 
tenances thereto,  or  in  any  manner  to  attempt  to  divert  or  interfere 
with  the  transmission  of  messages  along  the  line,  or  to  impair  the 
value  or  security  of  the  same,  subjects  the  party  offending  to  a 
penalty  of  one  hundred  dollars,  to  be  recovered  in  the  name  of  the 
superintendent  for  the  use  of  the  company  ;  and  also  to  fine  and  im- 
prisonment. 

They  may  erect  their  lines  along  the  side  of  railroad  tracks,  by 
obtaining  the  consent  of  the  railroad  company,  by  vote  of  the  board 
of  directors,  or  consent  of  the  superintendent  of  the  railroad.  In 
such  cases  the  line  and  fixtures  shall  remain  the  exclusive  property 
of  the  telegraph  company. 

There  is  the  same  provision  as  to  easement  as  provided  by  the 
Massachusetts  Act  (ante,  App.  S).  General  Statutes,  Revision  of 
1863,  c.  88. 

By  the  Act  of  Nov.  11, 1863,  every  telegraph  company,  unless  in- 
corporated, shall  keep  on  file,  and  have  recorded  in  the  town  clerk's 
office  of  each  town  where  it  has  an  office,  a  statement  of  the  names 
and  residences  of  the  persons  constituting  the  company.  ' 

In  each  town  where  the  company  has  an  operator,  also  in  the 
office  of  the  town  clerk  and  post-office,  the  telegraph  company  shall 
post  a  printed  card,  in  which  shall  be  stated  all  the  places  with 
•which  it  does  business,  and  the  rate  of  charges  for  transmission. 

Whenever  the  company  charges  more  than  this  rate,  the  excess 
may  be  recovered  back,  with  twelve  per  cent  interest  thereon. 

The  company  shall  not  make  contracts  in  the  State,  nor  enforce 
in  the  State,  contracts  made  out  of  the  State,  until  it  has  complied 
with  the  above  provisions. 

KK. 
VIRGINIA. 

Any  company  incorporated  to  construct  works  of  internal  im- 
provement may  construct  along  the  line  of  its  improvement'  a  tele- 


502  APPENDIX. 

graph  for  its  own  use  and  that  of  the  public,  and  make  charges  on 
messages  transmitted.  Code  of  Virginia,  1849,  c.  61,  sec.  25. 

The  inventors  of  any  system  of  telegraphs,  or  their  assigns,  with 
the  assent  of  the  Board  of  Public  Works,  may  construct  such  tele- 
graph along  the  public  roads,  works,  and  waters,  so  as  not  to  inter- 
fere with  their  ordinary  use,  and  along  the  streets  of  any  town, 
with  (he  consent  of  the  council  or  trustees ;  and  upon  the  land  of 
any  incorporated  company,  with  the  consent  of  the  company ;  and 
make  reasonable  charges  for  the  transmission  of  messages. 

The  legislature  may  alter  or  repeal  this,  or  the  25th  section,  c. 
61,  supra. 

Telegraph  companies  shall  make  annual  reports  to  the  Board  of 
Public  Works,  showing  the  amount  of  capital  stock  in  this  State 
invested  in  their  line,  how  much  thereof  was  received  by  the  patentee 
or  inventor,  how  much  held  by  others,  the  amount  per  share  of  the 
stock,  the  expense  of  the  line,  its  gross  and  net  profits,  and  the 
regulations  adopted  to  conserve  the  faithful  discharge  of  its  duties. 
If  they  fail  to  make  this  report,  they  shall  forfeit  five  hundred  dol- 
lars, and  the  like  forfeiture  for  each  succeeding  month  that  such 
failure  shall  continue. 

The  Act  of  May  26,  1852  (General  Acts,  c.  149),  contains  the 
same  provisions  as  the  California  Act  of  April  22,  1850  (ante,  App. 
F),  except  in  the  following  particulars:  — 

This  act  provides  for  five  commissioners  to  make  the  appraise- 
ment of  damages ;  and  there  is  no  limitation  as  to  the  time  within 
which  the  application  shall  be  made  for  damages. 

The  articles  of  association,  in  addition  to  providing  for  the  increase 
of  capital  stock,  may  also  provide  for  the  sale  and  transfer  of  stock ; 
the  name  of  the  new  shareholders  being  filed  with  the  secretary  of 
the  commonwealth. 

This  act  contains  the  same  provision  as  sec.  571  of  the  Connecticut 
statute.  Ante,  App.  G. 

Messages  shall  be  transmitted  with  impartiality  and  good  faith, 
under  penalty  of  one  hundred  dollars  for  each  offence,  to  be  re- 
covered from  the  party  sending,  or  offering  to  send,  the  message. 
And  in  case  of  failure  to  deliver  "  or  despatch  within  such  time  as 
will  allow,  after  its  reception  at  the  first  office,  one  hour  for  each 
one  hundred  miles  over  which  such  despatch,  containing  fifty  words 
or  less,  may  be  transmitted,  and  at  the  same  rate  for  other  mes- 
sages, the  owner  or  association  which  received  the  charge  therefor 


VIRGINIA.  503 

* 

shall  refund  the  same,  on  demand  of  the  party  from  whom  it  was 
received." 

There  is  the  same  provision  in  relation  to  sending  messages  in 
their  order  as  contained  in  the  California  act  above. 

For  disclosing  the  contents  of  messages  the  offender  shall  be 
guilty  of  a  misdemeanor,  punishable  by  fine  not  exceeding  five  hun- 
dred dollars,  or  imprisonment  not  exceeding  three  months  in  the 
county  jail. 

The  directors  or  trustees,  with  the  written  consent  of  the  owners 
of  two-thirds  of  the  stock,  may  extend  the  line  of  telegraph,  or  con- 
struct branch  lines  to  connect  with  the  main  line,  or  unite  with  any 
other  incorporated  company,  with  such  capital  stock,  and  upon  such 
terms,  as  may  be  agreed  upon.  This  act  is  subject  to  modification 
by  the  legislature. 

Telegraph  operators,  actually  engaged  in  their  business,  are  ex- 
empt from  serving  upon  juries.  Act  April  9,  1853. 

The  personal  liability  of  stockholders  shall  only  extend  to  the 
amount  of  their  unpaid  stock.  Act  of  Jan.  5,  1854. 

By  the  Act  of  March  11,  1856,  three  or  more  persons  may  sign 
a  certificate  similar  to  that  provided  by  the  Act  of  May  26,  1852 
(ante,  p.  502),  and  acknowledge  the  same  before  the  Circuit  or 
County  Court  in  which  the  operations  of  the  company  are  to  be 
conducted ;  and  thereupon  the  Court  may  grant  or  refuse,  in  its  dis- 
cretion, a  charter  of  incorporation  to  such  persons.  If  granted,  a 
copy  of  the  certificate  shall  be  filed  with  the  Secretary  of  the  Com- 
monwealth, and  also  with  the  clerk  of  the  court. 

The  minimum  capital  of  such  company  shall  not  be  less  than  five 
thousand  dollars,  nor  the  maximum  exceed  twenty  times  that 
amount ;  "  and  the  same  proportion  shall  be  preserved  for  greater 
sums."  The  shares  of  capital  stock  shall  not  be  less  than  twenty- 
five  dollars  each. 

A  telegraph  company  shall  not  hold  more  than  two  acres  of 
ground. 

The  company  may  make  calls  for  payment  on  stock  subscribed, 
under  penalty  for  non-compliance  of  forfeiture  of  shares  subscribed, 
and  all  amounts  already  paid ;  provided  there  be  such  default  after 
sixty  days'  notice,  requiring  such  payment,  in  a  newspaper  nearest 
the  place  where  the  company's  operations  are  carried  on. 

The  Act  of  Feb.  15,  1866,  requires  telegraph  companies,  incor- 
porated or  unincorporated,  to  take  out  a  license ;  and  a  violation  of 


504  APPENDIX. 

this  act  subjects  the  offending  party  to  a  fine  of  not  less  than  one 
hundred  nor  more  than  five  hundred  dollars  for  each  offence. 

The  Act  of  Feb.  4,  1866,  in  addition  to  the  penalty  of  one  hun- 
dred dollars,  makes  the  company  liable  in  damages  for  failure  to 
send  messages  with  impartiality  and  good  faith,  and  in  their  order; 
but  they  may  give  preference  to  official  despatches  from  officers  of 
the  United  States  or  of  the  State. 

Messages  must  be  promptly  delivered,  or  promptly  forwarded,  as 
the  case  may  be  ;  and,  for  failure,  the  company  shall  forfeit  one  hun- 
dred dollars  to  the  person  injured,  and  also  be  liable  for  damages. 


LL. 
WISCONSIN. 

Any  three  or  more  persons  may  become  incorporated  as  a  tele- 
graph company,  by  preparing  a  certificate,  containing  substantially 
the  same  statements  as  required  by  the  California  Act  of  April  22, 
1850  (ante,  App.  F),  in  relation  to  certificates.  This  certificate  is 
to  be  filed  in  the  office  of  the  Register  of  Deeds,  and  a  duplicate  in 
the  office  of  the  Secretary  of  State. 

The  company  has,  when  this  is  done,  substantially  the  same 
powers  as  designated  by  the  above  California  statute. 

There  shall  be  a  president,  and  not  less  than  three  nor  more  than 
nine  directors,  including  the  president;  to  be  annually  elected  by 
the  stockholders,  ten  days'  public  notice  being  given ;  the  election 
to  be  by  ballot,  and  each  share  of  stock  to  represent  a  vote.  If  the 
election  be  not  held  at  the  time  prescribed,  the  corporation  shall  not 
be  dissolved,  but  the  election  may  be  held  upon  another  day. 

The  directors  may  adopt  reasonable  regulations  and  by-laws,  and 
may  employ  officers,  clerks,  etc.,  and  determine  their  salaries. 

They  may  make  calls  upon  stock ;  and,  if  stockholders  do  not  re- 
spond,' their  stock'  may  be  sold  at  public  auction,  upon  twenty  days' 
notice,  either  published  or  served  upon  the  delinquent  stockholder  ; 
the  surplus,  over  and  above  the  amount  due,  to  be  paid  over  to  the 
delinquent  stockholder,  and  a  transfer  of  the  stock  be  made,  by  the 
directors,  to  the  purchaser ;  or  the  directors  may  sue  the  delinquent 
stockholder  for  the  amount  due  upon  his  subscription. 

The  stock  is  personal  property,  and  is  not  transferable  (unless  in 
the  manner  above),  except  upon  payment  of  the  full  amount  due 


WISCONSIN.  505 

upon  the  stock  at  the  time ;  and  the  corporation  shall  not  use  its 
funds  in  purchasing  stock  in  any  other  corporation. 

Stockholders  shall  be  personally  liable  to  the  extent  of  their  stock, 
for  debts  of  the  corporation  to  their  clerks,  servants,  and  agents,  and 
for  all  other  debts  of  the  corporation  after  execution  returned  un- 
satisfied, in  whole  or  in  part,  against  the  corporation ;  but  this 
liability  shall  not  be  for  debts  contracted  after  the  transfer  of  their 
stock. 

The  representatives  of  stockholders,  and  holders  of  stock  as  col- 
lateral security,  shall  not  be  personally  liable,  but  the  person  pledg- 
ing the  stock  shall  be. 

Representatives  of  stockholders  shall  represent  the  stock  in  their 
hands  at  the  meeting  of  the  stockholders,  and  vote  as  stockholders. 

The  company  may  increase  or  diminish  its  capital  stock,  and  ex- 
tend indefinitely  its  lines. 

Any  company  heretofore  formed  may  avail  itself  of  the  provisions 
of  this  chapter,  or  extend  its  telegraph  lines,  by  calling  a  meeting 
of  its  stockholders,  upon  notice  published,  or  served  upon  stock- 
holders, twenty  days  previous  to  the  meeting;  if  the  votes  repre- 
senting one-half  of  the  stock  are  given  in  favor  of  extending  the  line, 
or  increasing  the  stock,  or  availing  itself  of  the  provisions  of  this 
act,  a  certificate,  showing  a  compliance  with  the  provisions  of  the 
act,  the  extent  to  which  the  capital  stock  is  to  be  increased,  and  the 
line  extended,  shall  be  prepared,  signed,  and  verified  by  affidavit  of 
the  chairman  and  secretary,  and  acknowledged  by  them,  and  filed  as 
other  certificate  above ;  and  when  so  filed,  these  things  may  be  done 
by  the  company,  and  it  shall  be  entitled  to  all  the  privileges  and 
subject  to  all  the  liabilities  provided  by  this  act. 

The  books  of  the  company  shall  at  all  times  be  open  for  inspection 
by  stockholders,  and  creditors  whose  demands'  are  due. 

It  is  a  misdemeanor,  punishable  by  fine  of  five  hundred  dollars  or 
twelve  months'  imprisonment,  or  both,  to  reveal  the  contents  of  any 
private  message  to  any  other  person  than  the  one  to  whom  it  is 
directed,  or  to  his  attorney  or  agent.  This  act  is  subject  to  modi- 
fication or  repeal.  Revised  Statutes  of  Wisconsin.  1858,  c.  76, 
sec.  1-20. 

By  c.  77,  Revised  Statutes,  1858,  of  Electric  Telegraph  Lines, 
any  person  having  a  patent-right  under  the  laws  of  Congress,  may 
construct  and  operate  telegraph  lines. 

There  is  the  same  provision  as  to  public  roads  and  waters  of  the 


506  APPENDIX. 

State,  and  as  to  establishing  lines  on  private  lands,  as  provided  by 
the  Iowa  Statute  (ante,  App.  M),  except  that  no  provision  is 
made  for  compensation ;  but  the  owner  must  give  his  consent  to  the 
erection  of  the  lines  upon  his  lands. 

Messages  must  be  transmitted  in  their  order ;  and  the  employe 
violating  this  provision  shall  be  punished  by  fine,  not  less  than  fifty 
nor  more  than  one  hundred  dollars. 

An  annual  tax  of  twenty-five  cents  upon  every  mile  in  length  of 
the  line  shall  be  paid  to  the  State,  in  lieu  of  all  other  taxes ;  and 
the  State  shall  have  a  lien  upon  the  line  and  the  appurtenances  for 
this  tax ;  and  when  the  tax  is  due  and  remains  unpaid,  the  State 
may  advertise  and  sell  the  line  for  amount  of  taxes  unpaid,  provided 
the  same,  with  interest  and  charges,  shall  not  be  paid  at  the  time 
of  the  sale.  In  case  of  a  sale,  the  surplus  proceeds  shall  be  paid  to 
the  owner  of  the  line. 

There  is  the  same  provision  in  relation  to  the  injury  or  destruc- 
tion of  telegraph  lines  as  provided  by  the  California  Act  of  April  22, 
1850  (ante,  App.  F),  except  that  it  is  the  same  offence  by  this  act 
"to  counsel  or  advise"  the  commission  of  the  crime. 

Where  a  telegraph  line  is  abandoned,  the  owner  shall  forthwith 
remove  all  the  wires,  poles,  and  other  fixtures,  which  can  in  any 
wise  endanger  or  obstruct  travel  along  any  public  road.  If  not 
removed  within  three  months  after  such  abandonment,  any  person 
owning  adjoining  lands  may  remove  such  wires,  posts,  etc.,  and  ap- 
propriate the  same  to  his  own  use. 

By  Act  Sept.  25,  1862,  the  Secretary  of  State  is  authorized  to 
audit  accounts  for  telegraphing  on  war  business. 


MM. 

COLORADO. 

By  the  Act  of  Aug.  15,  1862,  any  number  of  persons  may 
organize  as  a  telegraph  company,  by  making  a  certificate  similar  to 
that  provided  by  the  California  Act  of  April  22,  1850  (ante,  App. 
F),  and  thereupon  shall  have  like  powers  with  those  authorized 
by  the  above  California  Act.  By  this  act  the  corporate  existence  is 
limited  to  ten  years. 

When  at  least  ten  per  centum  of  the  stock  has  been  subscribed 
and  paid  in,  a  meeting  shall  be  called,  upon  thirty  days'  public 


COLORADO.  507 

notice,  and  three  directors  chosen  by  ballot,  who  shall  continue  in 
office  until  the  first  annual  meeting  of  stockholders  thereafter. 

At  these  annual  meetings  there  shall  be  elected  a  president,  three 
directors,  a  secretary,  and  treasurer ;  and  regulations  and  by-laws 
may  be  adopted,  and  special  meeting  be  called,  or  the  time  of  the 
regular  meetings  be  changed. 

There  is  the  same  provision  in  relation  to  the  construction  of 
lines  along  public  roads  as  provided  by  the  Statute  of  Ohio.  Ante, 
App.  CC. 


INDEX. 


INDEX. 


A. 

SECTION 

ACCEPTANCE, 

of  message  for  transmission 95-98 

of  proposition  by  mail .     310 

as  to  difference  between  acceptance  by  mail  and  tel- 
egraph      295,  314, 317 

what  will  constitute  acceptance 319,  327 

knowledge  of,  not  necessary  to  a  contract    .     .     .  319-322 

actual  delivery  of,  not  necessary 329 

actions  by  senders  of  acceptance 335-337 

formal  acceptance  of  charter  not  required  ....         6 
ACTION,  ' 

at  common  law,  against  telegraph  company     .     .      34,  70 
AGENTS, 

duty  of  company  to  appoint  suitable 126 

when  company  liable  for  torts  of 69,  70 

criminal  responsibility  of 388-393 

liability  of  company  to  its  own 65,  67 

liability  of  company  for  acts  of,  when     ....      67,  69 
servant  of  connecting  line  agent  of  the  first  com- 
pany, when 268,  294  a 

how  far  the  company  the  agent  of  both  sender  and 

receiver  of  message 177-179,  197,  368 

may  not  be  agent  for  sender  and  connecting  lines 

at  same  time 269 

in  contracts  by  telegraph,  whose  agent  is  telegraph 

company 197,  325,  347,  354 

when  personally  liable 136,  138 


512  INDEX. 

SECTION 
AGENTS  —  Continued. 

have  the  same  recourse  against  principal  as  other 

agents 67 

must  act  upon  their  knowledge  of  defective  machinery       67 
rule  as  to  liability  for  negligence  inter  sese.       ...       67 

when  agents  for  other  companies 268 

jigency  must  bu  shown  to  enable  principal  to  recover 

a  penalty 432 

AGREEMENTS,  (See  CONTRACTS.) 

ALTERATION, 

of  messages 98,  165,  236 

of  charter,  effect  of,  on  liability  of  stockholder     .     .        18 

of  location  of  line 38,  42 

APPRAISERS  OF  DAMAGES, 

required  by  statute 90,  91 

mode  of  appraisement  by 90,  91 

award  of 91,92 

ASSENT, 

of  sender  of  message,  how  shown 

by  the  contract 104,  149,  192 

by  signing  the  restrictions  .     .     .   118,  118  a,  118  b 

by  acting  under  the  notice 113,  149 

or  allowing  the  company  to  act,  as 

if  assent  was  given 149 

when  presumed 118  a,  148,  149 

must  become  part  of  contract    .     .     .       143,  144 
may  be  implied  from  the  facts     .     .     .       148,  150 

(See  CONTRACT.) 
ASSESSMENT, 

of  damages 90,  91 

mode  of,  under  statutes 90,  91 

ASSIGNMENT, 

of  corporate  franchises 39,  40 

of  telegraph  lines,  etc.,  for  benefit  of  creditors      .     .       39 


B. 
BAILMENT, 

engagement  of  telegraph  companies  in  the  transmis- 
sion of  messages,  similar  to 95,  98 


INDEX.  513 

SECTIOW 

BILLS  AND  NOTES, 

protest  and  notice  sent  by  telegraph 304 

proof  of  delivery  required 304 

statutory  regulations  in  reference  to  sending  by  tel- 
egraph       308 

BRIDGES, 

telegraph  companies  not  to  erect 60 

BURDEN   OF  PROOF, 208,  261,  373,  382,  384 

in  actions  ex  delicto 385 

as  to  penalties 434 


C. 
CAPITAL   STOCK, 

statutory  provisions  in  relation  to  .     .     .     .   11,  14,  18,  19 

may  be  taxed 11 

may  be  exempted 12 

not  to  be  presumed 12 

CHARTER, 

may  operate  telegraph  without 2 

organization  under 14 

mode  of 15 

construed  strictly  as  to  exclusive  privileges      .     .     .     8,  9 
obligations  of  contracts  not  to  be  impaired  .     .  7,  9,  12,  18 

taking  franchise,  does  not,  when 9 

imposing  what  burdens,  does  not 10, 11,  12 

imposing  what  burdens,  does 12 

violations  of  — 

what  are 7,  9,  12,  18,  21 

what  are  not 9,  10,  11,  12 

constructions  of  — 

strict,  as  to  exclusive  privileges  .  .  .  .  8,  9,  42 
as  to  conditions  precedent  ....  16 
less  so  as  to  conditions  subsequent  .  .  16 

reasonable,  when 38,  57,  59 

against  the  company  in  ambiguities       ...       38 

amendments  of 10 

CHECKS, 

sent  by  telegraph  (California  stat.) 308 

33 


514  INDEX. 

SECTION 

CITIES, 

(See  MUNICIPALITIES.) 

CITIZENS, 

telegraph  companies  when  considered,  as  to  juris- 
diction of  Federal  courts 77 

COMMISSIONERS, 

to  assess  damages 90,  91 

mode  of  appointment 90,  91 

COMMON   CARRIERS, 

whether  telegraph  companies  are  such    ....    95-102 

conflict  of  authorities 198-229,  252 

similarity  between,  and  telegraph  companies, 

as  to  obligations 233-251 

servants  and  machinery 126,  127 

right  to  limit  liability  by  express  contract    .     .        141-147 
(See  CONTRACTS,  MESSAGES.) 

COMPENSATION, 

for  property  taken  in  invitum 26-29 

mode  of  determining 30,  32,  35 

what  injuries  included  in  assessment  of  damages      30,  90, 

91 

CONDEMNATION, 

acquisition  of  real  estate  by 26-29 

eminent  domain 26 

corporate  franchises  may  be  taken 27 

special  remedy  exclusive 30,  70,  84 

conditions  precedent  to 28 

CONDITIONS, 

precedent  to  liability  of  stockholders 4 

organization,  what  are 16 

subsequent  to  organization,  what  are 16 

upon  which  company  will  transmit  messages  .     .  105,  110 
company  may  make  reasonable 104 

CONSOLIDATION, 

power  of,  by  statute 88 

no  power,  except  by  statute 44 

CONSTRUCTION  OF  LINES, 

by  whom 2,  5,  8 

where  by  purchase 2,  24 


INDEX.  515 

SECTION 
CONSTRUCTION  OF  LINES  —  Continued. 

where  by  legislative  grant,  generally     3,  9,  23,  24,  26,  27, 

34,49 

must  comply  with  the  charter 16,  28,  70 

what  discretion  may  be  used 29,  57 

when  upon  highways 34,  49 

along  railroads .     .     .      27,  60 

under  streets  and  roads 31,  34,  49,  56 

may  be  changed  by  law 42 

by  town  authorities  .     .      3,  54,  55 
by  the   company   under    its 

charter 38,  42 

how  to  be  constructed  — 

properly,  safely,  etc., 59,  63 

so  as  not  to  obstruct  roads,  navigable  rivers, 

etc 2,  34,  49,  60,  63 

what  may  be  taken  under  power  to  construct  — 

franchises  of  other  corporations 27 

land,  for  the  line 26 

for  offices,  stations,  etc 26,  29 

extent  of  interest  taken 24 

taken  under  eminent  domain  ....       26 

same  as  to  franchises,  etc 27 

damages  caused  by  — 

assessed  as  in  railways 23,  30,  33 

statutory  provisions,  (See  App.)       .     .     .      3-2,  35 
CONTRACTS, 

general  power  to  make,  etc 37 

for  what,  legal  contracts  may  be  made  — 
»  for  the  purchase  of  real  estate     ...      4,  24,  37 

for  sale  of  real  estate 4,  25,  37 

for  purchase  of  franchises 4,  27 

leasehold  interests    .     .     .     .  4,  37 

for  construction  of  lines,  posts,  etc 37 

may  mortgage  same 37,  39 

may  not,  in  England 40 

what  are  illegal 119 

immoral 119 

in  furtherance  of  fraud .  .     .     119 


516  INDEX. 

SKCTIOK 

CONTRACTS  —  Continued. 

what  against  public  policy 119 

in  aid  of  crime 119 

to  impede  justice 119 

binding,  if  beneficial,  though  made  without  authority         46 

or  if  ratified  and  adopted 48 

in  relation  to  messages  with  the  company — 

may  be  made  by  agent 160,  177 

sender's  agent 432 

express  and  implied     150,  161,  168,  170,  171,  173, 

176,  180 

upon  printed  blanks,  usually  made  ....  149 
effect  of  notices,  generally  104,  149,  150,  260,  268 
when  blank  becomes  the  contract  118  6,  149,  207 
when  it  may  be  presumed  to  be  .  .  150, 162,  207 
who  decides  as  to  this  presumption  ....  104 
may  be  restricted  generally  to  their  own 

line 268,  274 

may  contract  for  liability  on  other  lines     .     .     273 

are  in  the  nature  of  bailments 95,  140 

not  locatio  operis  faciendi 95 

but,  vehendarum 98 

company,  under  contract  to  send,  bound  — 

to  literal  accuracy 167 

to  send  in  order  of  reception  .     129,  133,  168,  189 
impartially  and  in  good  faith  133,  134, 

170,  213,  218 

must  forward  to  connecting  lines  -  117, 128,  268, 421 
should  notify  applicant  of  suspended  commu- 
nication        175 

under  contracts  to  deliver  — 

must  do  so  promptly     .     .    95,  180,  188,  216,  263 

or  in  reasonable  time 188 

to  the  person  addressed  or  agent,  etc.  184, 185, 193 
immaterial  whether  repeated  or  not  .  191,  263 

or  forward  by  mail 186 

when  and  how  postage  may  be  charged  and 

collected 186 

notice  sometimes  given  in  newspapers  .     .     .     186 


INDEX.  517 

SECTION 
CONTRACTS  —  Continued. 

not  bound  to  notify  sender  of  reception      .     .     172 

must  use  due  diligence 187 

statutory  provisions 187 

possibly  might  be  done  orally 183 

may  be  by  telegraph 295,  335 

or  partly  by  telegraph 295 

similar  to  contracting  by  mail  .  .  305,  306,  317 
when  completed  by  mail  310,  319-322,  327,  328 
telegraph  311-318,  326,  327 
when  within  Statute  of  Frauds  .  .  .  .331-333 
when  evidenced  by  message  .  .  .  311-339,  417 

statutes  authorizing 308,  334 

as  to  privity  of,  with  receiver  of  message      197,  325,  354, 

368 

sender     .     .  197,  325,  330,  333,  368 
CONCEALMENT, 

duty  of  company's  servants,  as  to  contents  of  mes- 
sages   136 

COPY, 

of  message,  what  is, 

(See  EVIDENCE.) 
CUSTOM, 

as  to  prepayment  of  messages .     109 

delivery  of  messages 184,  187 

transmission    of-    messages    over    connecting 

lines 276,  278 

sending  notices 303 

to  copy 371 

CRIMINAL  RESPONSIBILITY, 

of  telegraph  companies 13,  419-446 


D. 
DAMAGES, 

assessment  of,  for  lands  taken 30,  90,  91 

consequential 33 

right  of  company  to  recover  for  injury  to  works, 

notwithstanding  offender  criminally  responsible     .       72 


518  INDEX. 

SKCTIOH 
DAMAGES  —  Continued. 

company  liable  in,  for  alteration  of  message    .       165,  167 
failure   to  inform   sender   of 
message  that  line  is  out  of 

order 173-178 

measure  of 387-414 

in  actions  ear  contractu  and  ex  delicto      387-392 
in  case  of  loss  of  profits  in  contracts  by 

telegraph 393-397 

where  message  is  unintelligible  to  the 

operator 402—410 

when  the  action  is  by  the  receiver  of  the 

message 411 

notice  in  case  of  resale 412 

where  resale  is  made        412 

co-operating  negligence 413 

where  message  is  not  in  relation  to  con- 
tracts     417,  418 

DELIVERY  OF  MESSAGES, 

duty  of  company  in  respect  to 95,  180 

in  reasonable  time,  when  to  be  made 188 

to  whom  made 184—187 

in  what  mode 185-187 

how,  when  personal  cannot  be  made 187 

what  is  sufficient 187 

company   not    required    to   deliver    message    until 

charges  are  paid 120 

the  message  delivered  must  be  duplicate  of  the  one 

furnished  for  transmission 181 

personal,  to  be  made  when  and  how 184 

oral,  might  discharge  the  obligation 183 

diligence  in,  a  question  of  fact  for  a  jury    .     .       187,  188 
should  be  in  the  order  of  time  in  which  they  are  re- 
ceived       188 

when  to  be  made  immediately 188 

preference  as  to  time  of  delivery 189 

whether  rule  as  to  repeated  message  is  a  reasonable 

one  as  to  the  delivery  of  messages      .     .     .        190-192 
what  will  excuse 194 


INDEX.  519 

SKCTIOM 
DELIVERY  OF  MESSAGES  —  Continued. 

no  obligation  upon  company  to  inform  sender  of  ina- 
bility to  deliver  message 194 

may  require  payment  of  antecedent  charges     .     .     .     195 

DIRECTORS  OF  COMPANY, 

their  powers  and  duties 20,  21 

right  of  majority  to  control 21 

may  be  restrained  in  equity 21 

DELAY  IN  TRANSMISSION  OF  MESSAGES, 
(See  MESSAGES.) 

DILIGENCE, 

in  transmission  of  messages      95-102,  216,  225,  229,  232, 

244,  255 
in  keeping  line  in  order 124-127 

DISCLOSURE  OF  MESSAGES, 

punishment  for 419-424 

DUTY  OF  TELEGRAPH  COMPANY, 

to  keep  line  in  working  order 124-127 

to  provide  competent  operators 126 

to  avail  themselves  of  new  improvements    ....     127 

to  transmit  messages  impartially 128,  129 

to  have  uniform  rates  of  charges 133,  134 

to  inform  person  offering  to  send  message,  that  lines 

are  down 173-175 

E. 
EMINENT  DOMAIN, 

real  estate  acquired  by 27,  29 

conditions  precedent  must  be  complied  with      ...       28 
company  may  enter  upon  lands  without  other  au- 
thority than  charter 28 

mode  of  estimating  damages  where  land  taken  by 

virtue  of 30 

EQUITY, 

courts  of,  exercise  jurisdiction,  injunctive  and  reme- 
dial, over  companies 80,  81 

in  case  of  nuisance 81 

ERRORS  IN  TRANSMISSION  OF  MESSAGES, 
(See  MESSAGES.) 


520  INDEX. 

SECTION 

ESTOPPEL, 

in  pais,  as  to  messages  written  upon  printed  blanks   .     149 

in  case  of  consolidated  companies 88 

EVIDENCE, 340-386 

what  is  the  best  evidence  in  respect  to  messages      340-342 
what  message  is  the  original     342-348,  361-364,  366-368 
copy     ....     349,361,364-368 
servants   of  company   bound   to   give   evidence   in 

courts,  as  to  contents  of  messages      138,  370-372,  375 
statutory  regulations  in  relation  to      ....       375-379 

of  delivery  of  message 369,  371 

for  transmission       .     .     .     .     369 
when  messages  admissible  as  declarations  of  party     .     380 

in  case  of  negligence 382-384 

of  experts 386 

EXEMPTION  FROM  TAXATION, 

(See  TAXATION.) 
EXTENT  OF  POWERS, 

(See  chapter  on  Powers  under  the  Charter.)    .     .      36-48 

EXPERTS, 

(See  EVIDENCE.) 

F. 

FINE  AND  IMPRISONMENT, 

(See  CRIMINAL  RESPONSIBILITY.) 
FRANCHISE, 

exclusive,  not  implied    - 86 

charter  granting,  to  be  construed  strictly      .... 

binding,  when  expressly  granted 

subject  to  right  of  eminent  domain 9,  26 

assignment  of note  1, 

of  being  a  corporation  not  assignable 39 

right  of  company  to  purchase  exclusive  franchise 
only  to  be  questioned  by  the  State  in  a  direct 

proceeding 

legislature  may  grant  similar  privileges  to  other  cor- 
porations, unless  franchise  is  exclusive     ....         8 
FRAUDS,  STATUTE  OF, 

its  application  to  messages 331-333 


INDEX.  521 

SECTION 
FRAUDS,  STATUTE  OF,— Continued. 

message,  a  writing  withiu    . 332 

statutory  regulations 334—339 

FRAUDS, 

perpetrated  by  means  of  messages, 
(See  MESSAGES.) 

G. 
GRANT  OF  EXCLUSIVE  PRIVILEGE, 

(See  FRANCHISE.) 
GOVERNMENT, 

power  to  take  control  of  telegraphs  by  statute  ...         3 
preference  given  to,  in  transmission  of  messages    .     .     130 

H. 
HIGHWAY, 

company's  power  to  establish  lines  upon,  by  statute  .       49 

construction  of  lines  upon,  without  statute  authority, 

indictable 13 

company  indictable,  when  they  place  their  lines  any- 
where within  exterior  limits  of,  without  statutory 
authority • 50,  51 

house  moved  along,  a  proper  use  of,  which  compa- 
ny's wires  must  not  obstruct 53 

when  towns  not  liable  for  company's  lines  upon 

streets 51 

provisions  of  English  statute -A-PP-  A 

I. 

ILLEGAL  AND  IMMORAL  MESSAGES, 

company  not  to  transmit 119 

INDICTMENT  BY  STATUTE, 

for  injury  to  telegraph  lines 72-75 

(See  CRIMINAL  RESPONSIBILITY.) 

INJUNCTION, 

when  granted 80,  81 

will  not  be  granted  unless  title  clear        .     .     .     .      81,  82 
to  restrain  company  from  misappropriation  of  funds         21 


522  INDEX. 

SECTION 
INJUNCTION—  Continued. 

when  improperly  proceeding  to  take  lands  in  invitum  84 
from  interfering  with  franchises  of  other  corporations  80 
will  not  be  granted  to  prevent  messages  being  sent 

over  rival  lines 83 

INJURIES, 

landowners  to  be  compensated  for,  when  lands  taken 

compnlsorily 26,  27 

to  franchises 6-14,  31,  37 

to  highways 13,  49,  50,  53 

to  telegraph  posts  and  lines 72,  75 

criminal  responsibility  for 75 

penal  action  against  company  and  agents  for  injuries 

sustained 65,  67 

of  servants,  liability  of  company  for 69 

when,  company  liable  for  wilful  injuries 

by  . 69 

infraction  of  patent  rights 71 

negligence  of  injured  party 64 

to  servants  from  negligence  of  fellow-servants       .     .       66 
INSTRUMENT, 

of  writing,  sent  by  telegraph 308,  334 

for  telegraphing  company  must  provide  suitable    .      67,  68 

statutory  provisions  requiring 68 

INSURERS, 

telegraph  company  when,  of  messages, 
(See  COMMON  CARRIERS.) 

J. 
JURY, 

of  view,  in  assessment  of  damages 91 

L. 
LANDOWNER, 

whether  entitled  to  compensation  for  construction  of 

lines  upon  highways 34 

LAND, 

is  occupied  by  passing  line  over     ....     note,    10,  23 


INDEX.  523 

SECTIOS 
LAND  —  Continued. 

ownership  of  company  by  purchase 11,  24 

whether  company  acquires  fee  in  .......       24 

assets  of  company  for  payment  of  liabilities  after  dis- 
solution     25 

company  may  mortgage  or  transfer    .     .     .  25,  38,  39,  40 
specific  performance  of  contract  to  convey,  decreed    .       25 
LETTER,  CONTRACTS  BY, 

(See  CONTRACT.) 
LEVY, 

of  execution  upon  telegraph  line 41 

LIABILITY  EX  DELICTO, 
of  company  to  its  agents, 

(See  AGENTS.     TELEGRAPH  COMPANY.) 
injury  to  property  of  company  subjects  offender  to      72,  75 
for  violation  of  rules  and  regulations  of  company      .       74 
when  company  delivers  message  to  wrong  person       .     193 
LOCATION  OF  LINE, 

upon  highways,  and  across  navigable  streams  ...       49 
route  and  termini  to  be  stated  in  articles  of  associa- 
tion      57 

change  of,  when  and  how  to  be  made      .     .     3,  38,  42,  52 
regulated  by  towns  and  cities   .......      54,  55 

where  right  to  change  location  is  given,  it  must  be 

strictly  pursued 59 

M. 
MACHINERY, 

telegraph  companies  must  provide  suitable  .     .       124-126 

no  warranty  of  absolute  sufficiency  of 67 

statutes  requiring  company  to  provide 128 

MANDAMUS, 

to  compel  company  to  perform  duty  imposed  by  law  13,  78 

to  compel  company  to  complete  its  line 78 

to    establish    uniform    rates   of 

charges 78 

to  compel  commissioners  to  assess  land  damages  .     .       78 
appropriate  remedy  to  compel  performance  of  statu- 
tory obligation  when  no  other  remedy  provided      .       78 


524  INDEX. 

SECTION 

MEASURE  OF  DAMAGES, 

(See  DAMAGES.) 
MESSAGES, 

what  they  are 95 

prescribed  form  of  letters  and  words     ...       99 

the  finished  work  of  the  sender 95 

usually  in  writing 97,  233 

may  be  oral,  when 97 

written,  have  a  tangible  existence  .  .  97,  236 
are  letters  forwarded  by  electricity  ....  97 
must  be  reduced  to  writing  at  other  end  of 

line 97,  236 

are  susceptible  of  loss 97 

are  not  susceptible  of  loss  .     .      151,  207,  214,  226 

may  be  destroyed  by  error 98 

same  by  contract,  in  hands  of  both  operators   •  233 
paper  writings,  recoverable  as  chattels       .     .     235 
have  the  character  of  chattel,  by  being  re- 
duced to  writing 236 

have  not  the  character  of  chattels,  .  .  note,  151 
are  instruments  of  evidence  .  233,  243,  340,  380, 

417 

a  commodity 248 

intelligence  for  transmission  .  .  .  207,  214, -219 
may  be  libellous 138  a 

what  are  repeated  messages Ill 

how  to  be  sent  — 

as  written, 107 

in  regular  order,  faithfully,  impartially,  etc.    .     167 

168,  189,  225 

but  preference  may  be  given  to  government  .  130 
and  to  messages  of  public  interest  .  .  131,  132 

to  whom  delivered  — 

to  the  party  addressed 184 

or  to  agents 185 

at  place  of  business,  when 186 

may  give  notice  in  newspaper,  when  .  .  .  186 
usual  diligence  required 187 

when  and  how  payment  for,  to  be  enforced  — 


INDEX.  525 

SEOTIOK 
MESSAGES  —  Continued. 

prepayment  may  be  required  .     .     .     .     .     .     109 

may  be  withheld  until  paid  for 120 

by  lien  on 120,  195 

by  notifying  sender 120,  196 

duties  of  company  to  the  public  in  relation  to  — 

must  keep  lines  in  good  repair      113,  124,  125,  127 
must  provide  suitable  instruments,  etc.         113,  125 

operators 126 

sufficient  force  for  delivery 188 

must  send  for  all 128,  133 

must  fix  uniform  rates 128,  134 

must  not  send  immoral  messages       .     .     .     .     119 
must  give  certain  public  officers  preference      .    130, 

131,  132,  189 

may  disclose  private  messages  in  legal  pro- 
ceedings        138 

must  receive  from  other  corporations  and  for- 
ward   .     .     .      117,  128,  268,  421 
only  in  the  statutory  alphabet    95,  166, 

182,  267 

not  in  cipher  of  arbitrary  char- 
acters     166 

nor  obscurely  written       107,  166,  267 
when  to  be  translated  ....     182 
Mr.  Redfield's  four  rules       ....     note  to  c.  iv.     269 
duties  to  individuals,  in  relation  to  — 

to  receive  from  all 140,  157 

to  receipt  for,  if  desired 164 

to  forward  at  once,  in  order  of  time,  faithfully  129, 

133,  168,  189 

impartially,  on  uniform  rates  .    133,  134,  170,  215, 

218 

must  transmit  correctly 167 

deliver  promptly         .     .     .95,  180,  188,  216 

in  reasonable  time    .     .     .       188,  189 

preserve  secrecy    .     .     .      136, 171,  376-378 

note  date  of  reception  by  first  operator  .     181 

second  operator    181 


526  INDEX. 

SKCTIOK 
MESSAGES  —  Continued. 

may  reject  those  in  arbitrary  cipher,  or  ob- 
scure, or  in  foreign  alphabets   .     .     95,  166,  182 
should  inform  sender,  if  the  lines  are  down, 

etc 173,427 

nature  of  engagement  as  to  — 

bailment 95,  140 

locatio  open's  mercitim  vehendarum      .       98 

not  locatio  operis  faciendi    ....       95 

undertaking  same  as  carriers  of  goods  .     .   95,  100 

not  the  same 99,102 

is  like,  in  certain  respects  .     .     .     101 

rules  and  regulations  in  respect  to  — 

power  to  make,  generally   .     .      104,  141-148,  150 

conferred  by  statute,  where 104 

peculiar  in  sending  messages,  etc 104 

when  valid      .          104 

validity,  by  whom  decided 104 

when  offered  as  terms  of  contracts  .     .     .     .     104 
sender  may  refuse  to  contract  specially  .     .     .     157 

when  and  how  accepted 1186 

effect  of,  after  acceptance 1186 

rules  and  regulations  for  convenience,  etc.  — 

analogous  to  railway  rules,  for  safety,  con- 
venience, etc 104,  151-153 

must  not  be  contrary  to  law 104 

validity  hypothetically  declared  by  the  court  .     104 
for  protection  of  operators  at  work  ....     105 

to  insure  secrecy 106 

requiring  messages  to  be  legible 107 

excluding  numerals  in  stating  sums,  etc.     .     .     108 
especially  in  those  making  contracts      .     .     .     108 

for  prepayment 109,  120 

classifying  charges 110 

governing  repeated  messages Ill 

must  all  be  reasonable 113-117 

whether  they  should  be  made  public      .       152,  155 

as  instruments  of  evidence  — 

original,  when 343,  348,  361-364 


INDEX.  527 

SECTION 
MESSAGES  —  Continued. 

secondary,  when 361 

one  may  be  best  evidence  of  part  of  contract .     351 

the  other  of  another  part 351-364 

when  original  in  the  nature  of  a  duplicate       .     349 

illustration  by  verbal  message 350 

how  affected  by  previous  agreement       .     .     .     351 

cases  decided 353-360 

question,  how  affected  by  nature  of  contro- 
versy             365-368 

MISDEMEANORS, 

offences  by  companies  and  their  agents  defined        421,  436 
statutory  provisions  of  the  various  States       422-428,  438, 

446 

United  States 429 

Canada .     430 

offences  by  third  persons -defined 437 


N. 

NAVIGABLE  STREAMS, 

telegraph  lines  across 49 

right  to  build  bridge  across,  generally  prohibited  .     .       60 
NEGLIGENCE, 

co-operating  negligence  will  defeat  action  for  dama- 
ges                64, 413 

burden  of  proof  on  plaintiff  in  such  cases    ....       64 
can  company  stipulate  for  exemption  from  ?    110-115,  1175 

142,  143,  205,  210,  266,  267 

in  relation  to  delivery  of  messages    110-114,  190,  264-266 
non-compliance  with  its   rules  does  not  exonerate 

company,  when  it  has  been  guilty  of  negligence      .     383 
NOTICE, 

should  be  given  in  assessment  of  land  damages,  al- 
though statute  is  silent  as  to 94 

company  may  limit  liability  by  special 205 

knowledge  of  general  notice  brought  home  to  party, 

binds  him 205-210 

of  resale,  in  action  for  damages     .     .     .     .     .     .     .     412 


528  INDEX. 

SECTION 

NUISANCE, 

telegraph  works  erected  on  highway  without  statu- 
tory authority,  are  such 13 

equity  will  enjoin  that  which  is,  per  se 80 

when  manifestly  so,  and  the  com- 
plainant's rights  clear  ....       81 
decline  where  right  is  doubtful  ....       82 

O. 
OPERATOR, 

company  must  provide  suitable 126 

no  right  to  change  message  to  read  as  he  under- 
stands its  meaning 167 

should  note  upon  message  time  of  day  when  received      181 
his  duties  in  the  transmission  of  messages    ....     233 
duty  of  operator  who  receives  message  after  trans- 
mission      ' 233,  234 

when  agent  of  sender  of  message 316 

ORGANIZATION, 

of  telegraph  companies 14-22 

P. 

PATENT  RIGHTS, 

can  telegraph  company  assign  ? 40 

infringement  of 71 

interference  with,  must  be  as  to  patentable  matter     .  71 

PENALTIES, 

penal  statutes  strictly  construed 432 

rule  in  case  of  specific  penalty 431 

who  may  sue  for 432,  433 

burden  of  proof,  where 434 

POWER  OF   ATTORNEY, 

statutory  provisions  in  relation  to  transmitting  by 

telegraph 308 

POWERS  OF  TELEGRAPH  COMPANY, 

under  charter 36,  38 

incidental,  to  dispose  of  property 39 

rule  otherwise  in  England 40 


INDEX.  529 

SECTION 

POWERS  OF  TELEGRAPH  COMPANY  —  Continued. 

to  purchase  exclusive  franchise  from  individuals    .     .  40 

construction  of     .' 40 

to  alter  route,  when  authorized  by  statute,  strictly 

construed 42 

power  to  re-locate  exhausted  by  location       ....  42 
to   make    arrangements  with   other    companies   for 

transmission  of  messages 44 

to  enter  into  contracts  without  seal 45 

PREFERENCE, 

to  certain  public  officers 130,  131,  132,  189 

by  statute  to  newspaper  in  transmission  of  messages  131 

in  relation  to  press  despatches 131 

PROCESS, 

civil  and  criminal  sent  by  telegraph 308 

PROMISSORY   NOTE,      (See  BI^LS  AND  NOTES.) 

PROTEST, 

notices  of,  sent  by  telegraph 304-306 

statutory  provisions 308 


R. 

RECEIVER  OF  MESSAGE,     (See  CONTRACT.) 
REMEDIES,. 

by  statute,  for  assessment  of  land  damages       .     .      90,  91 

statutory  remedy  exclusive 36,  70 

except  where  there  is  fraud      92 

mandamus 78 

scire  facias  and  quo  warranto 79 

penal  actions 419-434 

actions  ex  delicto ...    63,  69,  70,  74, 193,  385,  388,  391 

ex  contractu 388,  391,  402 

indictment  for  injury  to  telegraph  line,  by  statute       .       75 

in  equity 80-85 

company  not  answerable  beyond  the  remedy  given 

by  statute,  when , 70 

at  commmon  law  for  abuse  of  power  conferred  by 

statute 70 

company  to  be  sued  at  its  usual  place  of  business      .       77 
34 


530  INDEX. 

SECTION 
REPEATED   MESSAGES,     (See  MESSAGES.) 

RESPONSIBILITY  OF  TELEGRAPH  COMPANIES. 

extent  of  responsibility,  (See  COMMON  CAHKII.US.) 
for  messages  transmitted  over  connecting  lines     270-294  a 
governed  by  same  rule  as  in  case  of  railroad  com- 
panies      278 

rule  as  to  railroad  companies 278 

conflict  in  American  cases  as  to  railroad  companies  .     272 
rule  in  Canada  that  telegraph  company  is  not  liable 

beyond  its  own  line 280-283 

rule  in  New  York 284 

in  California 288 

receiving  pay  for  entire  distance,  primd  facie  proof 

of  responsibility  for  the  entire  route 282 

may  become  liable  by  contract,  general  rule      .     .     .     273 

except  in  Connecticut 273 

RIGHTS  OF  TELEGRAPH  COMPANIES, 

to  make  rules  and  regulations     ....     103-118  5,  151 

to  require  message  to  be  in  writing 107 

to  refuse  transmission  of  oral  messages 107 

to  require  that  numerals  shall  not  be  used  in  mes- 
sages        108 

to  fix  rates  of  transmission 108 

to  require  prepayment  of  messages 109 

to  classify  charges  in  relation  to  messages    .     .     .     .     110 
to  decline  messages  so  obscurely  written,  that  the 

words  cannot  be  read 166 

and  so,  if  in  arbitrary  cipher  or  foreign  alphabets  .     .      95, 

166,182,  267 
RULES  AND  REGULATIONS, 

company  may  make 104,  141-148,  150 

validity  a  question  of  law 104 

reasonableness  of  application  decided  by  jury  .     .     .     104 

may  make,  for  facilitating  business 151 

such  as  to  eject  from  office  person  violating,  etc.     104-118, 

115,  154 

as  to  repeated  messages 104-118  b,  149 

the  reasonableness  of  rules  as  to  transmission      111-118  b, 
205-229,  242-244,  246,  257, 262 


INDEX.  531 

SECTION 

RULES  AND  REGULATIONS  —  Continued. 

difference  when  applied  to  delivery  of  message       190,  192, 

263-266 

Mr.  Redfield's  four  rules  (end  of  c.  iv.) 269 

duty  of  company  to  publish 152,  155 

whether  sender  of  the  message  is  bound  to  know 

them 118,  155 

S. 

SCIRE  FACIAS  AND    QUO   W ARE  ANT  0, 
(See   REMEDIES.) 

SECRECY, 

in  relation  to  messages,  enjoined  by  statute       .     .     .     136 
must  be  observed  as  to  messages  in  absence  of  statu- 
tory requirement 136,  171 

right  of  company  to  establish  rules  in  relation  to    104,  106 
implied  contract  as  to .     .     171 

SELECTMEN  OF  TOWN, 

agents  of  the  public 54,  55 

SERVANTS,  (See  AGENTS.) 

SHAREHOLDER, 

personal  liability,  by  statute 86,  87 

conditions   precedent  to  personal  liability  of,  must 

be  complied  with  . 17 

STATE, 

telegraph  companies  in  relation  to 1-13 

STATIONS, 

may  be   established  at  intermediate  points  on  the 

line,  although  not  expressly  authorized  by  statute  .       57 

STATUTES,  PAGE 

of  England 421 

Canada 447 

New  Brunswick 451 

United  States 451 

Alabama 457 

Arkansas 458 

California 458 

Connecticut 465 


532  INDEX. 

PAGE 
STATUTES  —  Continued. 

Delaware 467 

Florida 468 

Georgia 469 

Illinois    . 469 

Indiana ' .     .  470 

Iowa 471 

Kansas 471 

Kentucky 472 

Louisiana 473 

Maine 474 

Maryland 474 

Massachusetts 476 

Michigan 478 

Minnesota 481 

Mississippi 482 

Missouri 483 

Nevada 484 

New  Hampshire 486 

New  Jersey 487 

New  York 488 

North  Carolina 491 

Ohio 491 

Oregon 496 

Pennsylvania 497 

Rhode  Island 498 

South  Carolina 499 

Texas 499 

Tennessee 499 

Vermont 500 

i 

Virginia 501 

Wisconsin 504 

Colorado 506 

STOCKHOLDER,  SECTION 

liability  of 17 

subscription  of  stock  a  contract 18 

effect  of  legislation  amendatory  of  charter  upon  this 

contract 18 

municipal  corporation  may  be  t.  . 19 


INDEX.  533 


T. 

SECTION 

TAXATION, 

of  telegraph  lines 11,  12 

of  capital  stock 11 

of  capital   stock    against  company,  and  of   shares 

against  individuals,  cannot  be  made  at  same  time  .       11 

of  income 11,  429 

exemption  of  telegraph  companies  by  legislation   .     .       12 
exemption  to  be  held  temporary,  if  act  will  bear 

that  construction 12 

TELEGRAPH  COMPANIES, 

may  operate  lines  without  charter 2 

when  chartered,  are  private  corporations      ....         4 

powers  under  their  charter 4,  36-48 

may  make  arrangement  with  other  companies  for 

connecting  lines 44 

acceptance  of  charter   creates  a  contract  between 

them  and  the  State 5 

legislature  may  impose  additional  burdens  upon    .     .       10 
liable. to  indictment  at  common  law,  when    .....       13 

by  statute,  when 420-430 

to  damages  for  obstructing  public  use  of  high- 
way .  • 63,  64 

for  all  breaches  of  public  duty 62 

individual  must  show  special  damage  in  such  case     .       62 
must  keep  their  line  in  proper  condition  .     .     .     .    63,  124 

duty  to  provide  suitable  instruments 65,  124 

liability  to  its  own  agents  and  servants  in  respect  to 

defects  in  machinery 65,  67 

no  warranty  as  to  absolute  sufficiency  of  machinery    65,  67 

patent  defects     67 

liable  for  injuries  done  by  its  servants 69 

when  for  wilful  acts 69 

not  for  fraudulent  representations  made  outside  of 

scope  of  agency 69 

liable  beyond  statutory  damage,  when 70 

will  be  protected  in  the  use  of  line 72 


534  INDEX. 

SECTION 

TELEGRAPH  COMPANIES  —  Continued. 

nature  of  engagement  of,  in  respect  to  messages   .     95,  97, 

99-102 

cannot  provide  against  their  own  negligence     .       113,  1 16 

liability  of,  where  no  effort  to  transmit  message,  al- 
though sent  as  unrepeated  message 117 

no  right  to  require  transmission  of  message  over 

their  lines 121 

may  limit  their  responsibility  in  transmission  of  mes- 
sages by  express  contract 141-146,  205 

liability  to  sender  of  message  under  its  published 

rules  and  regulations 148—163 

no  right  to  have  explanation  of  the  meaning  of  mes- 
sages   165 

not  liable  for  error  where  message  is  illegible,  in 
cipher  of  arbitrary  character,  or  in  foreign  alpha- 
bets   166 

TELEGRAPH  LINES, 

injury  to,  indictable  by  statute 3,  75 

may  be  taken  by  government  when  public  exigen- 
cies require 3 

taxation  of 11 

authority  to  carry  "across"  railway  does  not  author- 
ize carrying  "  under  " 31 

company  will  be  protected  in  the  enjoyment  of      .      72-75 

interference  with,  actionable 72 

obligation  upon  telegraph  companies,  by  statute,  to 

provide  suitable 65,  68 

obligation  upon  telegraph  companies,  by  statute,  to 

keep  in  good  condition 63 

when  medium  of  contract, 

(See  CONTRACT.) 

duty  of  resorting  to,  in  giving  information       .       297-299 

cases  decided 300,  301 

TOWNS, 

not  liable  to  individual  injured  by  telegraph  works 

on  streets,  when 55 

TORTS, 

company  liable  for,  like  other  persons 61 


INDEX.  535 

SECTION 
TORTS  —  Continued. 

liability  may  be  enlarged  by  statute 61 

company  liable  for  agents',  when        .     .     .     .     .      69,  70 

as  to  patent  rights 71 

others  liable  to  company 72,  74 

statutes  respecting 75,  419 

U. 

USAGE,  (See  CUSTOM.) 


W. 


WITNESS,  (See  EVIDENCE.) 
WRITS,  (See  PROCESS.) 


ERRATA. 

At  top  of  p.  83,  for  "  §  66,"  read  "  §  67." 

§  69,  n.  2,  for  "  Drybury,"  read  "  Dryburg." 

§  146,  n.  2,  for  "  Calder,"  read  "  Colder." 

§  184,  n.  2,  for  "  Trust  Co.,"  read  "  Transp.  Co." 

§  213,  n.  1,  for  "  Caggs,"  read  "  Coggs." 

§  232,  third  line  from  top  of  page,  for  "  employers,"  read  "employes." 

§  310,  n.  I,  for- "  Taylor,"  read  "  Tayloe." 

§  333,  §  339,  n.  1,  and  §  358.  for  "  Dunning  &  Smith  v.  Roberts,"  read  "  Dunning  v.  S.  &  R. " 


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